IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 SA.NO. 457 OF 1999(D) --------------------- {IN AS.419/1994 OF SUB COURT, NEYYATTINKARA IN OS.819/1985 OF II ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA} .................... APPELLANT(S)/RESPONDENTS/DEFENDANTS 2 TO 7: ----------------------------------------------------------- 1. JAINAMMA, W/O.BALAKRISHNAN, AGED 55 YEARS, EDAKONATHU MEKKUMKARA VEEDU, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. 2. BENNEES MANIAN, S/O BALAKRISHNAN, AGED 34 YEARS, EDAKONATHU MEKKUMKARA VEEDU, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. 3. BENNEES CHANDRAN, S/O BALAKRISHNAN, AGED32 YEARS, EDAKONATHU MEKKUMKARA VEEDU, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. 4. BENNEES BABY, S/O BALAKRISHNAN, AGED30 YEARS, EDAKONATHU MEKKUMKARA VEEDU, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. 5. BENNEES MOHANAN, S/O BALAKRISHNAN, AGED 28 YEARS, EDAKONATHU MEKKUMKARA VEEDU, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. 6. RAJENDRAN CALLED BABU, S/O BENNEES, AGED41 YEARS, EDAKONATHU MEKKUMKARA VEEDU, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S)/APPELLANTS/PLAINTIFFS 1 TO 3: -------------------------------------------------------- 1. KAMALAKSHY VIMALA, AGED 35 YEARS, EDAKONATHU VARUVILAKATHU VEEDU, THALAYAL DESOM, ATHIYANNOOOR PAKUTHY. SA.NO. 457 OF 1999 :: 2 :: 2. KUTTAN SUDARSANAN, AGED 32 YEARS, EDAKONATHU VARUVILAKATHU VEEDU, THALAYAL DESOM, ATHIYANNOR PAKUTHY. 3. KAMALAKSHY PREMA KUMARI, AGED 27 YEARS, EDAKONATHU VARUVILAKATHU VEEDU, THALAYAL DESOM, ATHIYANNOOR PAKUTHY. R1 & R2 BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY & SRI.PIRAPPANCODE V.S.SUDHIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.NO. 457 OF 1999 :: ORDER ON C.M.P.No.1195/99 IN SA.NO. 457 OF 1999 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 08.10.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. --------------------------------------- S.A.No.457 of 1999 --------------------------------------- Dated this the 8h day of October, 2010 JUDGMENT Additional defendants 2 to 7 in O.S.No.819/85 on the file of the II Additional Munsiff, Neyyattinkara, have filed this appeal. 2. The above suit was one for eviction and arrears of rent. Resisting the suit claim, the defendants disputing the tenancy claimed right of Kudikidappu over the building and premises covered by the plaint property. Reference made to the Land Tribunal was answered in favour of the defendant entering a finding that he has got Kudikidappu right over the building and premises. Accepting the finding of the Land Tribunal, the trial court dismissed the suit. Pending suit, the 1st defendant had passed away and his legal heirs had been brought in as the additional defendants. 3. In the appeal preferred by the plaintiffs, the lower appellate court, taking note that in a previous suit, which was one for injunction, no claim of Kudikidappu had been raised by the defendant and, further, the Land Tribunal has not S.A.No.457 of 1999 :: 2 :: followed the procedure laid down by the Act and Rules in determining the claim of Kudikidappu, interfered with the finding of the Land Tribunal, and formed a conclusion that the defendant is not entitled to the Kudikidappu right claimed over the building. The lower appellate court, holding that there was no specific denial of tenancy by the defendant after entering a finding in favour of the plaintiff thereof, declined the claim of arrears of rent, as there was paucity of evidence to prove such claim. Eviction of the defendants applied for by the plaintiff was granted by the lower appellate court. The additional defendants 2 to 7, aggrieved by that decree, have preferred this appeal. 4. At the time of hearing, it is submitted that in the execution proceedings of the decree, the defendants have raised a contention that the area comprising the building under their occupation has been notified as falling under Act 2/1965 and as such, in execution of the present decree for eviction, they are not liable to be evicted. S.A.No.457 of 1999 :: 3 :: 5. The Learned counsel for respondents/plaintiffs also conceded that pursuant to the present litigation, a notification had been issued under Act 2 of 1965 and the building now falls within the sweep of that Act. So much so, both sides concede that the decree, as such, granted by the civil court has become inexecutable. It is submitted by both sides that the appeal can be disposed of with a direction that the parties can work out their remedies in accordance with the provisions of Act 2 of 1965. While disposing the appeal, the learned counsel for the appellants requested for leaving open the claim of Kudikidappu canvassed by the defendants which was found in their favour by the tribunal, but, negatived by the lower appellate court after re-appreciation of the evidence let in the case. After going through the records of the case, I find, the reservation sought for to leave open the claim of Kudikidappu for fresh adjudication does not arise for consideration as the finding entered thereof by the lower appellate court is seen to be unassailable. The decree for S.A.No.457 of 1999 :: 4 :: eviction granted in favour of the respondents/plaintiffs has become inexecutable, in view of the notification published under Act 2/1965 by no stretch of imagination will confer any better right on the appellants/defendants and at any rate, to seek a re-adjudication of the claim of Kudikidappu in a subsequent proceeding, which has been found against by the court below. In view of the submissions made by both sides as above, that the decree granted to the plaintiffs by the courts below has become inexecutable, the appeal is only to be disposed of, leaving the parties to work their our remedies in accordance with the provisions of Act 2/1965, and it is ordered accordingly. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// S.A.No.457 of 1999 :: 5 ::