IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 RSA.No. 408 of 2008() --------------------- AS.118/2001 of SUB COURT,NEYYATTINKARA OS.810/1996 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS AND DEFENDANTS 1 AND 2: ---------------------------------------------- 1. K.RAMESAN, S/O.KUNJUNNI PANICKER, ASOKA MANDIRAM, VENGANOOR VILLAGE, BEACH ROAD, KOVALAM P.O., NOW RESIDING AT MARUTHARAVILAKATHU PUTHEN VEEDU, HOUSE NO.P.P.IX/725, BHAGAVATHINADA P.O., VEDIVACHANKOVIL, NEYYATTINKARA. 2. S.PAVITHRA, W/O.RAMESAN, DO, DO. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS/PLAINTIFFS & DEFENDANTS 4 TO 6: ---------------------------------------------------------- 1. G.JALAJA, W/O.SIVARAJAN, AGED 38 YEARS, MARUTHARAVILAKATHU PUTHEN VEEDU, PP XI/270, BHAGAVATHINADA P.O., POONKODE, VEDIVACHANKOVIL, PALLICHAL, TRIVANDRUM. 2. D.SIVARAJAN, S/O.DAMODARAN, RESIDING AT DO, DO. 3. KUNJUNNI PANICKER SYLESWARAN, POONKODU MARUTHARA VILAKATHU PUTHEN VEEDU, BHAGAVATHY NADA, PALLICHAL DESOM AND PAKUTHY. 4. KUNJUNNI PANICKER GIREESAN OF DO, DO. 5. KUNJUNNI PANICKER SUDARSANAN OF DO, DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR ...................................... R.S.A. No. 408 of 2008 ....................................... DATED: 6TH DAY OF OCTOBER 2008 JUDGMENT Defendants 1 and 2 in O.S. 810 of 1996 on the file of the 2nd Addl. Munsiff's Court, Neyyattinkara are the appellants in this Second Appeal filed under Sec. 100 read with Order 42 of C.P.C. The said suit instituted by respondents 1 and 2 herein who are husband and wife was one for declaration, recovery of possession and for injunction. 2. 3rd defendant is the father of the first defendant and first plaintiff. Second plaintiff is the husband of first plaintiff and 2nd defendant is the wife of the first defendant. The plaint A schedule property is having a total extent of 8 cents. Plaint B schedule property which is the R.S.A. No. 408 of 2008 -:2:- eastern most portion of the plaint A schedule and is having an extent of 1 cent with a residential building thereon. The recovery of possession was sought in respect of plaint B schedule property. Plaint A schedule property including plaint B schedule property and admeasuring 8 cents is admittedly belonged to plaintiffs 1 and 2. Plaint B schedule property consisting of 1 cent of land with a building thereon was in the possession of 3rd defendant the father of first plaintiff and first defendant. As per Ext.A3 sale deed dated 11-12-1995 the 3rd defendant sold plaint B schedule property together with the building to the plaintiffs. The plaintiffs allowed the 3rd defendant father to reside in the house. The case of the plaintiffs is that defendants 1 and 2 who are husband and wife trespassed into the property necessitating the suit. 2. The defence put forward by the defendants was that the 3rd defendant the father of the first defendant and first plaintiff had only one cent of land in his possession and a house thereon was constructed by the first R.S.A. No. 408 of 2008 -:3:- defendant with the permission of the 3rd defendant in the year 1991 expending a sum of Rs. 40,000/-. Thereafter the plaintiffs by influencing the 3rd defendant got Ext.A3 sale deed executed in their favour. The first defendant claimed the status of a kudikidappukaran and also put in a counter claim to the effect that in case the suit was decreed for recovery of the plaint B schedule property he should be permitted to demolish the building or in the alternative for compensation towards the construction of the building. 3. The courts below found that the plaint B schedule property admeasuring one cent of land together with the building absolutely belonged to 3rd defendant who had constructed the building thereon and who had sold the same to the plaintiffs as per Ext.A3 sale deed in the year 1995. The defence contention that the house was constructed by the first defendant expending Rs. 40,000/- was also found against. His claim for kudikidappu was also not referred to the competent Land Tribunal for the reason that the first defendant was found to possess R.S.A. No. 408 of 2008 -:4:- another extent of 4 cents with a shop building and therefore he would not come within the definition of “kudikidappukaran”. The suit was accordingly decreed and the counter-claim was rejected concurrently by the Courts below. 4. The learned counsel appearing for the appellants/defendants made the following submissions before me:- The defendants had adduced evidence to show that it was the first defendant who constructed the building in the plaint B schedule property and therefore the courts below ought to have decreed the counter claim. The finding that the first defendant will not fall under the definition of “kudikidappukaran” has been rendered on the basis that he possessed 4 cents of land with a shop building. But then, the said four cents lies in a panchayath area and therefore in order to incur the disqualification, it should have been shown that the first defendant is in possession of more than 10 cents of land. The decree is passed by the R.S.A. No. 408 of 2008 -:5:- courts below are accordingly unsustainable. 5. I am afraid that I cannot agree with the above submissions. In the light of the concurrent finding of fact by the courts below that it was the 3rd defendant himself who constructed the building on the plaint B schedule property, it is no more open to the first defendant to persist his contention that it was he who constructed the house with the permission of the 3rd defendant. If so, his further contention that he was permitted to occupy the building and therefore, he is a kudikidappukaran will not stand. In the light of the factual findings recorded by the courts below, the contention of the first defendant that his counter claim ought to have been decreed cannot be sustained. When his contention that the father permitted him to construct the house in the property is found against and when the case of the plaintiff in this regard has been accepted the 1st defendants' plea that he is a “kudikidappukaran” does not even prima facie arise for consideration so as to warrant a reference under Section R.S.A. No. 408 of 2008 -:6:- 125 (3) of the Kerala Land Reforms Act. I do not find any question of law, much less, any substantial question of law arising for consideration this the Second Appeal. None of the questions of law formulated in the memorandum of appeal also arises for consideration in this Second Appeal which is accordingly dismissed in limine. V. Ramkumar, Judge. R.S.A. No. 408 of 2008 -:7:-