IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 RSA.No. 556 of 2007() ----------------------------------- AS.169/1987 of II ADDL.SUB COURT,KOZHIKODE OS.627/1982 of PRL.M.C.,KOZHIKODE-II .................... APPELLANTS/RESPONDENTS 3,6,7,8 AND 10 ---------------------------------------------------------------------- 1. P.K.SAINABA, D/O. PACKER, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK. 2. AMINA, W/O. CHEKKU, RESIDING IN KASABA AMSOM, DESOM, KOZHIKODE TALUK. 3. SAKEENA, D/O. AMINA, RESIDING IN KASABA AMSOM, DESOM, KOZHIKODE TALUK. 4. SAHITHA, S/O. AMINA, RESIDING IN KASABA AMSOM, DESOM, KOZHIKODE TALUK. 5. P.K.MUHAMMEDKUTTY, S/O. P.K.PATHU, RESIDING IN PANNIANKARA AMSOM, KANNANCHERY AMSOM, KOZHIKODE TALUK. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU RESPONDENT(S): APPELLANT AND RESPONDENTS 1,4,5 AND 9 --------------------------------------------------------------------------------------------------------- 1. JAMEELA, SAKATH VEEDU, D/O. P.M.AHAMMED KOYA, AGED 38 YEARS, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK. 2. P.K.AYISSABI, D/O. PACKER, PANNIANKARA AMSOM, DESOM, KOZHIKODE TALUK. #3. P.K.HASSANKOYA, S/O. PACKER, RESIDING IN HOUSE NO.15/132, MADAPARAMBA ROAD, P.O.KALLAI, CALICUT-3. 4. P.K.MOIDEENKOYA, S/O. PACKER, RESIDING IN KATCHERI AMSOM, DESOM, KOZHIKODE TALUK. 5. THE SECRETARY, KERALA WAKF BOARD, ERNAKULAM. #6. N.P.BICHU W/O.MUHAMMEDALI AND D/O.LATE HASSANKOYA, AZEENA MANZIL, MEDAPARAMBIL HOUSE, KANNAMPARAMBA ROAD, KUNDUNGAL, KALLAI P.O., KOZHIKODE. 7. N.P.RAFEEK, S/O.LATE HASSANKOYA, C/O.N.P.BICHU AZEENA MANZIL, MEDAPARAMBIL HOUSE, KANNAMPARAMBU ROAD, KUNDUNGAL, KALLAI P.O., KOZHIKODE. # died LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 6 AND 7 AS PER ORDER DATED 15.1.2008 IN I.A.NO.1310 OF 2007 ADV.SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD FOR R5 SRI.P.K.RAMKUMAR FOR R1 SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.556 of 2007 = = = = = = = = = = = = = = Dated this the 13 th day of January 2009 JUDGMENT The legal representatives of defendants 2, 3 and 4 in O.S.No.627 of 1982 on the file of the Principal Munsiff's Court, Kozhikode-II are the appellants in this second appeal. The said suit was one for eviction of the defendants from the plaint B Schedule property or in the alternative for recovery of possession of the plaint B Schedule Property on the strength of the plaintiff's title. The said suit was instituted by one Imbichi Pathummabi, the mother of the 1st respondent herein claiming to be the muthavally of the A schedule property allegedly belonging to a Wakf of which the plaint B Schedule was a portion. 2. The case of the plaintiff was that the 1st plaintiff was the muthavally of a registered Wakf which owns the plaint A Schedule larger building, that the plaintiff's mother Imbichibi @ Aiyshabi obtained the plaint A schedule building as per Ext.A1 assignment deed dated 25.10.1935, that in the year 1953 the plaint A Schedule building which was standing as a Karaima R.S.A.No.556 of 2007 2 property was dedicated as a Wakf as evidenced by Ext.A2 document dated 7.8.1953, that in the year 1959 the plaint B Schedule building which is a portion of the plaint A schedule building was leased out to Hajarumma, the mother of the 1st defendant on a monthly rent of Rs.20/-, that the 1st defendant's mother died in the year 1978 and the 1st defendant was in occupation and defendants 2 to 6 were sub-leases in possession of the same. 3. The suit was resisted by defendants 2 to 6 contending, inter alia, as follows:- The 1st plaintiff is not the owner of the plaint A Schedule property. There is no Wakf created in respect of the said property or the karaima land. Even if a Wakf deed was executed it was never acted upon and the property was never treated and dealt with as Wakf property. In the earlier rent control proceedings initiated as R.C.P. 104/79 the 1st plaintiff did not put forward the contention that the plaint A Schedule Property is the Wakf property. After getting worsted in the rent control proceedings, the plaintiffs have instituted the present suit on the R.S.A.No.556 of 2007 3 ground that the plaint A Schedule building is now exempted from the provisions of the Kerala Building(Lease and Rent Control) Act, 1965. Properties belonging to registered wakfs alone are exempted under Section 25 of the said Act. The identity of the plaint A and B Schedule properties has not been proved by the plaintiffs. A portion of the property in Puthiya Kovilakam Paramba with definite measurement was obtained by Sainaba the grandmother of defendants 2 and 3 from Aiyshabi the mother of the 1st plaintiff and she had put up a hut thereon and continued her residence in the said hut and as such the plaint schedule property is the kudikidappu of Sainaba. On her death her children Khader alias Chinna, Hajarumma and Pocker continued to reside in the property. While so, in the year 1975, the house collapsed and it was reconstructed with contributions received from the public . Moideen was allowed to occupy a portion of the house on the request of the 1st plaintiff. Later it was discovered that it was a trap made by the 1st plaintiff to deny the defendants of their kudikidappu right. The suit is only to be dismissed. R.S.A.No.556 of 2007 4 4. This case had a checkered career. Originally, the 1st plaintiff filed R.C.P.No.104 of 1979 before the Land Tribunal, Kozhikode seeking eviction of the defendants. Eviction was claimed on the ground of subletting and arrears of rent. The matter was fought up to the revisional court and subsequently got withdrawn by the 1st plaintiff and the present suit O.S.No.627 of 1982 was thereafter filed claiming the above reliefs . The plea of kudikidappu was referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. Land Tribunal returned a finding to the trial court to the effect that since the plaint B Schedule Property occupied by the defendants was part of a larger building, the plea of Kudikidappu was not maintainable. Thereafter the trial court came to the conclusion that plaintiffs have failed to prove that Plaint A Schedule Property was a Wakf property exempted under the provisions of Kerala Rent Control Act and consequently the defendants are liable to be evicted only in accordance with the provisions of the Kerala Buildings(Lease and Rent Control) Act, 1965. Accordingly, as per judgment and decree dated 28.2.87, the trial court dismissed the suit as not R.S.A.No.556 of 2007 5 maintainable. On appeal preferred by the legal representatives of the plaintiffs as A.S.No.169 of 1987 on the file of the Sub Court, Kozhikode, the lower appellate court reversed the findings of the trial court holding that the plaint A Schedule Property is a registered Wakf exempted under the provisions of the Kerala Building(Lease and Rent Control) Act, and that the finding of the Land Tribunal does not call for any interference and that since the lease in favour of the defendants with regard to the plaint B Schedule Property has been validly terminated, the plaintiff is entitled to a decree for eviction with arrears of rent fixed at Rs.720/- and damages for use and occupation at the rate of Rs.20/- per month from the date of suit till surrender of vacant possession. It is the said decree which is assailed in this second appeal. 5. The following are the questions of law formulated in the memorandum of second appeal:- a) Whether the courts below would be justified in ordering eviction/recovery of possession of the property without actually identifying the same? R.S.A.No.556 of 2007 6 b) Whether the courts would be justified in decreeing the suit for recovery of possession of the property without actually identified the same with reference to the title deed of the plaintiff? c) Whether the Court can hold that the property is a Wakf solely on the basis of a document without any other supporting evidence to satisfy that the same was really acted upon and the property was dealt with as Wakf property? d) Whether the finding of the courts below that there cannot be kudikidappu right in respect of a portion of a building can be said to be sustainable under the provisions of Kerala Land and Homes Act? e) Whether the appellate court is justified in accepting the documents at the appellate stage without giving the other side a reasonable opportunity to dispute the correctness of the same? 6. I heard the learned counsel appearing for the appellants who assailed the findings recorded by the lower appellate court on the following submissions:- The findings recorded by the lower appellate court that the R.S.A.No.556 of 2007 7 plaintiff has established the identity of the plaint schedule properties is incorrect, that the lower appellate court has gone wrong in confirming the findings of the Land Tribunal that there cannot be any kudikidappu in respect of a part of a building and that the lower appellate court went wrong in receiving additional evidence to enable the plaintiff/ appellant to contend that the plaint schedule properties are registered Wakf exempted under the provisions of the Kerala Building(Lease and Rent Control) Act,1965. 7. I am afraid that I cannot agree with the above submissions. Under points Nos. 5 & 6 the lower appellate court has held that the plaint B Schedule property is a portion of the building let out on lease to Hajarumma under whom the defendants claim possession and that the lease has been validly terminated under Section 106 of Transfer of Property Act, 1882. Under point 1, the lower appellate court has confirmed the findings recorded by the Land Tribunal that the defendants are not entitled to claim kudikidappu right over the plaint B Schedule Property which is a R.S.A.No.556 of 2007 8 portion of a larger building. Under point No.3, the lower appellate court had recorded a finding after considering the additional evidence adduced in the appeal, namely Exts.A11,12 and A13 that the plaint schedule property is a registered wakf exempted under Section 25 of the Kerala Buildings (Lease and Rent Control) Act, 1965. 8. The question of identity is a pure question of fact which has been elaborately considered by the lower appellate court to hold in favour of the plaintiffs. The finding of the Land Tribunal that the defendants are not entitled to claim kudikidappu right in respect of plaint B Schedule property it being part of a larger building is also rightly endorsed by the lower appellate court. The said finding is in tune with the decisions of this Court that no kudikidappu right can be claimed in respect of a portion of a building (vide Muhammed v/s.Imbichibi (1974 KLT 738 (FB). Krishnamma v. Nageswari Amma (1984 KLT 810) and William George Haggins v. Ayisha (1985 KLT 703). The lower appellate court was well within its rights in receiving additional evidence under Order 41 Rule 27 C.P.C and Exts.A11 R.S.A.No.556 of 2007 9 to A13 are unimpeachable documents which clearly show that the plaint schedule properties constitute registered wakf. If so, by virtue of the provisions under Section 25 of the Kerala Building(Lease and Rent Control) Act, properties belonging to registered wakfs are exempted from the provisions of the Kerala Building(Lease and Rent Control) Act, 1965. If so, the suit was validly instituted before the civil court. The tenancy having been validly terminated by issuing notice under Section 106 of the Transfer of Property Act, the defendants were liable to be evicted as prayed for by the plaintiffs. From the findings recorded by the lower appellate court, no question 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. The learned counsel appearing for the appellants submitted that three families are residing in the plaint schedule property and there are students whose academic pursuit would be interfered with if they were to be evicted immediately. He, R.S.A.No.556 of 2007 10 therefore, prayed for some time till June 2009. Having regard to the facts and circumstances of the case, I am inclined to grant time till the end of 30th June,2009, provided the appellants file an affidavit before the executing court within three weeks from today undertaking to surrender vacant possession of the plaint schedule properties on or before 30.6.2009 and also undertaking that they will comply with the money portion of the decree, including the prompt payment of the monthly rent and shall not induct any strangers in the property or commit any act of waste in respect of the plaint schedule property until handing over vacant possession of the same to the plaintiff. Dated this the 13 th day of January, 2009. V. RAMKUMAR, JUDGE sj