IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 15760 of 2010(O) -------------------------- AGAINST THE ORDER IN EP 253/2009 IN OS.171/1986 of PRL.MUNSIFF, KASARAGOD .................... PETITIONERS: --------------- 1. M.A.ABDUL RAHIMAN, S/O.RAJA MAMMUNHI, HASANATHUL JARIAH JUMA MASJID COMPOUND, MASJID ROAD, KASARGODE. 2. ACHIBI, D/O.RAJA MAMMUNHI, CHENGALA, KASARGODE. 3. MARIYUMMA @ MASHA, D/O.RAJA MAMMUNHI, NELLIKUNNU, KASARGODE. 4. JAMEELA, D/O.RAJA MAMMUNHI, BANGARA KASBA, MANGALORE 0 575001. 5. ZAINABA, W/O. YOUSUF, BANGRAMUNNU, NELLIKUNNU KASARGODE KASBA VILLAGE, KASARGODE. 6. KHADEEJA, D/O. YOUSUF, BANGRAMUNNU, NELLIKUNNU KASARGODE KASBA VILLAGE, KASARGODE. 7. RAMLA, D/O. YOUSUF, BANGRAMUNNU, NELLIKUNNU KASARGODE KASBA VILLGE, KASARGODE. 8. SAKEENA, D/O.YOUSUF,BANGRAMUNNU, NELLIKUNNU KASARGODE KASBA VILLAGE, KASARGODE. 9. RAHMATH, D/O.YOUSUF, BANGRAMUNNU, NELLIKUNNU KASARGODE KASBA VILLAGE, KASARGODE. 10. UMMAIBA,D/O.YOUSUF, BANGRAMUNNU, NELLIKUNNU KASARGODE KASBA VILLAGE, KASARGODE. 11. HANEEF, S/O.YOUSUF, BANGRAMUNNU NELLIKUNNU KASARGODE KASBA VILLAGE, KASARGODE. BY ADV. SRI.V.V.ASOKAN SRI.MAHESH V.MENON RESPONDENT: --------------- HASANTHUL JARIAH JUMA MASJID REPRESENTED BY ITS MUTHAVALLY DR.M.A.SCHAMNAD, FORT ROAD, KASARGODE. ADV. SRI.P.K.MUHAMMED FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15760 of 2010(O) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : JUDGMENT IN S.A.NO.528 OF 1990 EXHIBIT P2 : E.P.NO.253 OF 2009 IN O.S.NO.171 OF 1986 OF MUNSIFF COURT, KASARAGOD EXHIBIT P3 : COUNTER FILED IN E.P.NO.253 OF 2009 IN O.S.NO.171 OF 1986 OF MUNSIFF COURT, KASARAGOD EXHIBIT P4 : ORDER IN E.A.NO.94 OF 2010 IN E.P.NO.253 OF 2009 IN O.S.NO.171 OF 1986 OF MUNSIFF COURT, KASARAGOD RESPONDENT'S EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 15760 of 2010 --------------------------------------- Dated this 14th day of July, 2010 JUDGMENT Defendants in O.S.No.171 of 1986 of the court of learned Principal Munsiff, Kasaragod are the petitioners before me challenging Ext.P4, order dated 03-04-2010 on E.A.No.94 of 2010 in E.P.No.253 of 2009. Respondent sued petitioners for eviction on the strength of a ground rent arrangement between them as per which petitioners were permitted to put up a homestead in the suit property. Learned Munsiff refused eviction on the ground that in the meantime predecessor-in-interest of petitioners purchased right of kudikidappu in respect of the homestead, in O.A.No.907 of 1972. Respondent challenged that judgment and decree in appeal. Learned Sub Judge allowed the appeal and ordered eviction. Petitioners challenged judgment and decree of the first appellate court in this court in second appeal and that resulted in Ext.P1, judgment dated 13-03-2007. Pursuant to that, respondent filed E.P.No.253 of 2009 for eviction of petitioners and for fixing value of building payable to petitioners. Respondents also applied for issue of a commission vide E.A.No.94 of 2010 which the executing court allowed as per W.P.C.No.15760 of 2010 : 2 : Ext.P4, order. Petitioners are aggrieved by that order and have come up with this writ petition. Learned counsel for petitioners contend that going by Ext.P1, judgment executing court had to refer the issue of Kudikidappu right to the Land Tribunal for a finding and only if the Land Tribunal answered reference against petitioners, question of assessment of value of building for payment to the petitioners arose. Learned counsel for respondent contends that Ext.P4 is valid since assessment of compensation payable to the petitioners for construction of homestead will have no effect on the claim of kudikidappu which is to be decided by the Land Tribunal on reference. 2. I have gone through Ext.P1, judgment of this court. In paragraph 10 while upholding decree for eviction passed by the first appellate court it is stated that before granting delivery of possession of the suit property, value of building (payable to the petitioners) is to be ascertained in the execution proceedings, respondent has to deposit the same (for payment to the petitioners) and if that be so question whether petitioners are entitled to kudikidappu right can also be left open to be decided in the execution proceedings for which executing court may refer the matter to the Land Tribunal under Section 125(3) of the W.P.C.No.15760 of 2010 : 3 : Kerala Land Reforms Act (for short, “the Act”). Ext.P1, Judgment of this court does not say that assessment of compensation payable to the petitioners could be done only after reference is made and Land Tribunal has entered a finding that petitioners are not entitled to any right of kudikidappu. According to the learned counsel cost of construction of the homestead is to be decided by the Land Tribunal. But going by Section 2(25), explanation (II) of the Act cost of construction of the homestead becomes relevant only when it is constructed by a person other than the person permitted to occupy the said homestead. In this case, it is not disputed that the building was constructed by petitioners or their predecessor-in-interest in which case explanation (II) has no application. If that be so, assessment of compensation payable to the petitioners (in case they are found not entitled to kudikidappu) as ordered by the executing court will not in any way affect or prejudice right of petitioners in claiming kudikidappu. I do not find reason to interfere with Ext.P4, order. I make it clear that after assessment of compensation payable to the petitioners as ordered by the Advocate Commissioner, executing court has necessarily to refer the issue regarding kudikidappu to the Land Tribunal as directed W.P.C.No.15760 of 2010 : 4 : by this court in Ext.P1, judgment and the question whether compensation is payable to the petitioners would follow the finding entered by the Land Tribunal on the question of kudikidappu. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-