IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 RSA.No. 104 of 2011() ----------------------------- AS.57/1999 of SUB COURT, TIRUR OS.99/1993 of MUNSIFF-MAGISTRATE COURT,PONNANI .................... APPELLANT/RESPONDENT/PLAINTIFF --------------------------------------------------------- KALLATTAYIL ABU, AGED 48 YEARS, S/O.ABDULLA, PERUMPADAPPA AMSOM, CHERUVALLUR DESOM, PONNANI TALUK, MALAPPURAM. BY ADVS. SRI.C.V.MANUVILSAN SRI.P.K.KHALEEMUDHEEN SRI.P.G.SURESH SMT.K.VIDYA RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------------------------------------ 1. MUHAMMED, AGED 61 YEARS, S/O.VALIYAKATHU KOZHISSERY BAPPU, PERUMPADAPPA AMSOM, CHERUVALLUR DESOM, PONNANI TALUK, MALAPPURAM. (REPRESENTED BY VALIYAKATHU KOZHISSERY BAPPU, PERUMPADAPPA AMSOM, CHERUVALLUR DESOM, PONNANI TALUK, MALAPPURAM.) 2. SULAIMAN @ UNNI, AGED 51 YEARS, S/O.VALIYAKATHU KOZHISSERI BAPPU, PERUMPADAPPA AMSOM, CHERUVALLUR DESOM, PONNANI TALUK, MALAPPURAM. (REP. BY VALIYAKATHU KOZHISSERY BAPPU, PERUMPADAPPA AMSOM, CHERUVALLUR DESOM, PONNANI TALUK, MALAPPURAM). 3. HAMEED, AGED 42 YEARS, S/O. VALIYAKATHU KOZHISSERI BAPPU, PERUMPADAPPA AMSOM, CHERUVALLUR DESOM, PONNANI TALUK, MALAPPURAM. 4. AYISHA, AGED 47 YEARS, D/O. VALIYAKATHU KOZHISSERI BAPPU, PERUMPADAPPA AMSOM, CHERUVALLUR DESOM, PONNANI TALUK, MALAPPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2011, ALONG WITH RSA NO. 106 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR, J ........................................... RSA Nos. 104 & 106 OF 2011 ............................................ DATED THIS THE 2nd DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.Nos.48 and 99 of 1993 on the file of Munsiff -Magistrate Court, Ponnani is the appellant. Defendants are the respondents. O.S.48 of 1993 was filed seeking a decree for permanent prohibitory injunction. O.S.99 of 1993 was filed seeking a decree for injunction or in the alternative, recovery of possession against the children of defendants 1 and 2 in O.S.48 of 1993, as it was revealed that plaint schedule property belonged to them in jenmom right. Appellant would contend that his mother Pathunni Umma was a kudikidappukari in the plaint schedule property having resided in a hut under defendants 1 and 2 in O.S.48 of 1993 and the kudikidappu right was purchased from the Land Tribunal under Ext.A3 order and Ext.A1 kudikidappu certificate was issued later and subsequently the mother gifted the property to the appellant RSA 104 & 106/2011 2 under Ext.A1 gift deed and he has been in possession of the property. Therefore, respondents have no right whatsoever in the property and they cannot trespass into the property. It is contended that even if it is found that appellant is not in possession of the property, he is entitled to recover possession of the property on the strength of title. Respondents resisted the suit. Defendants in O.S.48 of 1993 contended that the mother of appellant was not a kudikidappukari and she had left the house which was subsequently fallen and in any case, the kudikidappu certificate is not valid and binding on them being the true owners of the property and it does not belong to the defendants in O.S.48 of 1993 but the defendants in O.S.99 of 1993 and therefore suit is to be dismissed. Defendants in O.S.99 of 1993 contended that they are the owners of the property and though the mother of appellant was residing in a house, she subsequently locked the house and went away and the house had fallen and thereafter no house existed RSA 104 & 106/2011 3 and the order of Land Tribunal is not binding on them as they are not parties to the proceedings and no notice was served on them and therefore appellant is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of PW1, Dws 1 and 2, Exts.A1 to A9(b), B1 to B4(b) and C1 to C6 granted a decree in both the suits. Defendants in O.S.99 of 1993 were directed to surrender possession of the plaint schedule property within one month. Defendants in O.S.48 of 1993 challenged the judgment before Sub Court, Tirur in A.S.56 of 1999 and the defendants in O.S.99 of 1993 filed A.S.57 of 1999. Learned Sub Judge, on reappreciation of evidence found that the right claimed by appellant is under Ext.A3 order of the Land Tribunal and Ext.A1 purchase certificate issued pursuant to Ext.A3 order, and Ext.B2 report of the Special Revenue Inspector itself reveals that defendants in O.S.99 of 1993 were not parties to the O.A. and the real landlords were not impleaded. It was held that as Land RSA 104 & 106/2011 4 Tribunal did not implead the defendants in O.S.99 of 1993 who are the real landlords and no notice was served on them, the order of the Land Tribunal is not binding on them. Learned Sub Judge therefore found that appellants cannot claim right under Ext.A1 kudikidappu certificate and further found that the property identified as plaint schedule property by the Commissioner in Ext.C5 report and C6 plan differs from the property located by the Revenue Inspector in the kudikidappu proceedings. Therefore, appeals were allowed and the suits were dismissed. The said common judgment is challenged in these appeals. R.S.A.104 of 2011 is filed challenging the judgment in A.S.57 of 1999 reversing the decree granted in O.S.99 of 1993 and R.S.A.106 of 2011 is filed challenging the judgment in A.S.56 of 1999 reversing the decree granted in O.S.48 of 1993. 3. Learned counsel appearing for appellant was heard. Appellant is claiming right and title to the plaint schedule property under Ext.A2 gift deed, obtained from his mother RSA 104 & 106/2011 5 Pathunni Umma. The case is that Pathunni Umma was a kudikidappukari and under Ext.A1 certificate of kudikidappu, Pathunni Umma is the absolute owner of the property and respondents have no manner of right in the property. Trial court, relying on Ext.A3 order of the Land Tribunal and Ext.A1 purchase certificate, upholding the claim of appellant, granted the decree. First appellate court, relying on Ext.B2 report of the Revenue Inspector found that Ext.A3 order was passed without impleading the real land owners of the property and no notice of the proceedings were issued to the respondents in R.S.A.104 of 2011 who are the landlords of the property and therefore the order of Land Tribunal is not binding on them. Learned Sub Judge also found that when appellant is claiming right under Ext.A1 purchase certificate, the property identified by the Commissioner differs from the property shown in Ext.B3 plan prepared by the Revenue Inspector based on which kudikidappu certificate was issued. RSA 104 & 106/2011 6 4. The argument of learned counsel is that though respondents in R.S.A.104 of 2011 were not parties to O.A.18 of 1989 and their mother was the landlord in the O.A and she had appeared before the Land Tribunal and consented to the order and in such circumstances, the order is binding on her children, the respondents in R.S.A.104 of 2011. Learned counsel argued that in any case, even if it is found that Ext.A3 order is not binding on the respondents in R.S.A.104 of 2011, an opportunity may be granted to the appellant to approach the Land Tribunal to purchase the kudikidappu right by impleading appellants in R.S.A.104 of 2011. 5. Even if Pathunni Umma was a kudikidappukari, appellant could claim title to the plaint schedule property or seek a decree for recovery of possession, only if Pathunni Umma was granted the kudikidappu right in the presence of the landlord of the property. Though Ext.A3 order was passed in favour of Pathunni Umma, granting her the right RSA 104 & 106/2011 7 to purchase kudikidappu, admittedly notice was not issued to the respondents in R.S.A.104 of 2011, who are admittedly the landlords of the property at the time when O.A was filed. Even though the mother was impleaded in the O.A and the order shows that mother had appeared and did not object to the kudikidappu, the mother had challenged that order before the Appellate Authority, as is clear from Ext.B7 order of the Appellate Authority in A.A.10 of 1993. Therefore, as found by the first appellate court, if she had consented to the O.A, she would not have filed the appeal. Whatever it be, when Ext.B2 report submitted by the Revenue Inspector in unambiguous terms show that respondent shown in O.A.18 of 1989 is not the landlord of the property and landlord is the respondents in R.S.A.104 of 2011, and in spite of the fact brought to the notice of the mother of appellant and the Land Tribunal, the real landlords were not impleaded. As they were not impleaded, respondents in R.S.A.104 of 2011 are definitely entitled to RSA 104 & 106/2011 8 contend that Ext.A3 order is not binding on them. The fact that the appeal filed by the mother was dismissed will not make any difference. If Ext.A3 is not binding on respondents in R.S.A.104 of 2011, as rightly found by the first appellate court, appellant is not entitled to the decree sought for. If Pathunni Umma is a kudikidappukari and is entitled to purchase kudikidappu right, as Ext.A3 order was passed without impleading the real landlord, either Pathunni Umma or the appellant if he is entitled to, is at liberty to approach the Land Tribunal for purchase of kudikidappu right. As no substantial question of law is involved, the appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk