IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 RSA.No. 987 of 2008() --------------------- AS.38/2003 of I ADDL. DISTRICT COURT, KOLLAM OS.466/1992 of PRL.M.C., KOLLAM .................... APPELLANT/APPELLANT/ PLAINTIFF ------------------------------------------------------------ C.RADHAMONY AMMA,W/O.VISWANATHA PILLAI, AGED 57 YEARS, GEETHA BHAVAN, KANNIMEL CHERRY, KAVANADU, KOLLAM. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.N.K.SUBRAMANIAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------------- 1. NANIKUTTY, W/O.PADMANABHAN, PULINKKULATHU KAROTTU VEEDU, VADAKKEVILA CHERRY, VADAKKEVILA, VILLAGE. 2. RAMADAS, S/O.PADMANABHAN, PULINKKULATHU KAROTTU VEEDU, VADAKKEVILA CHERRY, VADAKKEVILA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.987 of 2008 = = = = = = = = = = = = = = Dated this the 13 th day of November, 2008 JUDGMENT The plaintiff in O.S.No.466 of 1992 on the file of the Additional Munisiff's Court, Kollam is the appellant in this second appeal. The said suit was one for fixation of boundary of the plaint B Schedule property and for perpetual injunction restraining the defendants from trespassing into the plaint B Schedule Property. 2. The case of the plaintiff can be summarised as follows:- The plaintiff has title over the 10 cents of land as per Ext.A1 partition deed dated 6.05.1965. The plaint A Schedule Property admeasuring 5 cents of land constitute the western half and the plaint B Schedule Property also admeasuring 5 cents of land constitute the eastern half totalling 10 cents of land. The plaintiff is in possession of the plaint B Schedule Property which is the eastern half. The 2nd defendants' father Padmanabhan was a kudikidappukaran in respect of the plaint A Schedule Property. The predecessors of the plaintiff permitted the 2nd R.S.ANo.987 of 2008 2 defendant's father to put up a hut on the western extremity of plaint A Schedule property. But the defendants attempted to trespass upon the plaint B Schedule property without confining themselves to the plaint A Schedule property. Hence the suit for fixation of boundary and perpetual injunction. 3. Among the various contentions raised by the defendants they also contented that they are tenants entitled to fixity of tenure in respect of entire A and B Schedule properties. The question of tenancy was the subject matter of an additional issue framed by the trial court which referred the said question to the Land Tribunal, Kollam under Section 125(3) of the Kerala Land Reforms Act 1964. The Land Tribunal after trial returned a finding of the trial court to the effect that the defendants are deemed tenants under Section 4A of the Kerala Land Reforms Act and they are entitled to get the benefit of fixity of tenure. Incorporating the said finding the learned Munsiff as per judgment and decree dated 9.8.01 dismissed the suit. Aggrieved by the dismissal of the suit the plaintiff filed an appeal before the District Court, Kollam as A.S.No.38 of 2003. The learned District Judge after hearing both sides considered the correctness or R.S.ANo.987 of 2008 3 otherwise of the finding returned by the land tribunal and after a detailed examination of the oral and documentary evidence confirmed the said finding and dismissed the said appeal. Hence this second appeal. 4. The learned counsel appearing for the appellant vehemently argued that the Otti kuzhikanam deed of 1089 ME set up by the defendants was not in respect of the Plaint A Schedule Property or the Plaint B Schedule Property and that it has not been proved that the defendants are the descendants Parvathy the mortgagee under the 1089 Ottikuzhikanam deed. He also submitted that the appellant/plaintiff did not have sufficient opportunity to adduce evidence before the Land Tribunal or before the trial court to substantiate her contentions. The further submission was that apart from the dismissal of two earlier applications filed by the 1st defendant under Section 80 (B) of the Kerala Land Reforms Act, there was a suo motu proceedings under Section 72(C) of the Kerala Land Reforms Act and the said proceedings were dropped holding that applicant is not a cultivating tenant. The said order would operate as res judicata. These aspects were not considered by R.S.ANo.987 of 2008 4 the land tribunal or by the lower appellate court. 5. I am afraid that I cannot agree with the above submissions. The lower appellate court has discussed the rival contentions and has also come to the following conclusions:- Ext.A1 produced before the land tribunal is the Otty Kuzhikanam deed of 1089 M.E. That was executed by Ummini Pillai who was in possession of the property in favour of Parvathy. The defendants have traced their possession and title over the said property to the said parvathy. There is an observation in paragraph 15 of the judgment of the lower appellate court that there was no attempt made from the side of the plaintiff to controvert the claim of the defendants that the plaintiff and the defendants are successors in interest of Ummini Pillai and Parvathy respectively. Similarly there is a further observation that there was no attempt from the side of the plaintiff to show that the property shown in the Otty Kuzhikanam deed of 1089 ME is different from the property covered in Ext.A1 partition deed marked before the Munsiff's Court. No ground has been taken in the memorandum of second appeal that the aforesaid observations in the judgment of the lower appellate R.S.ANo.987 of 2008 5 court are wrong. If so, the said statement shall be treated as final and conclusive, so far as the parties are concerned. The lower appellate court has further concluded that the Otti Kuzhikanam deed was executed by Ummini Pillai after receiving 900 Panams and the mortgagee was entitled to make improvements in the property. The lower appellate court has also considered the oral evidence of PW1 examined before the land tribunal and he is none other than 2nd defendant. He has given evidence regarding Otti Kuzhikanam deed and the subsequent events. He also deposed before court that there were two applications before the land tribunal filed by the defendants themselves for assignment of kudikidappu under Section 80(B) of Kerala Land Reforms Act. In appeal they were got withdrawn with liberty to file appropriate applications. He also deposed before court that the defendants were not aware of the suo motu proceedings. It was the plaintiff who contended that the suo motu proceedings were eventually dropped with a finding that the defendants are not cultivating tenants. Strangely enough the order of land tribunal in the said suo motu proceedings was not produced before the land tribunal or before R.S.ANo.987 of 2008 6 the courts below. Such a person cannot be heard to set up a plea of res judicata. It was after consideration of all these aspects of the matter that the lower appellate court confirmed the finding of the land tribunal to the effect that the defendants have entitled to fixity of tenure in respect of both A and B Schedule properties. The said finding is a pure finding of fact. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 13 th day of November, 2008. V. RAMKUMAR, JUDGE sj