IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 RSA.No. 472 of 2008 --------------------------------- AS.248/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.651/1991 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/APPELLANTS/L.Rs OF DECEASED DEFENDANT: 1. KAMALAKSHY, RESIDING AT THACHARUVILAKATHU VEEDU, MELE KALADY, KALADIMURI, IRANIMUTTOM (MANACAUD) VILLAGE, THIRUVANANTHAPURAM. 2. REMINI, RESIDING AT DO. DO. BY ADV. SRI.L.MOHANAN RESPONDENT/RESPONDENT/PLAINTIFF: SIVAN, S/O.NARAYANA PANICKER, RESIDING AT T.C.22/1377, AZHIMUKHATHU VEEDU, IRANIMUTTOM (MANACAUD) VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI. AYYAPPAN SANKAR(CAVEATOR) SRI.G.SURARSHAN SRI.VENJARAMOOD M.ZIYAD SRI.M.M.RAJNEESH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.472 of 2008 --------------------------- JUDGMENT This is Regular Second Appeal by the legal representatives of the deceased mortgagee/the sole defendant in O.S.No.651/91 on the file of the Munsiff's Court, Thiruvananthapuram assailing the concurrent verdicts of the courts below, negativing the claim of the mortgagee to kudikidappu right on redemption by virtue of Explanation IV to Section 2 (25) of the Kerala Land Reforms Act. 2. Counsel for the appellants submits that in view of the decision of this Court in S.N.D.P., Poothotta Branch v. Ammini (ILR 2008 (2) Kerala 99) the evidence adduced before the Land Tribunal cannot be looked into by the civil court unless such evidence had been adduced before the civil court or let in, in the manner provided under the Evidence Act and so, therefore, there is absolutely no evidence regarding the income and on the basis RSA 472/08 2 of the income of the mortgagee, the claim advanced for kudikidappu right should not have been negatived. All the same, it has been proved by production of Exhibit A5 by the plaintiff/ respondent that the appellants own three cents of land in Manacadu Village within the city of Thiruvananthapuram. Counsel for the appellants further submits that in view of the decision aforesaid, it is true that documents produced before the Land Tribunal cannot as such form part of evidence in the case, but, all the same, by a registered document, the property purchased under Exhibit A5 was sold by the appellants on 4.5.1977, namely, Sale Deed No.557/1977 and that ought to have been permitted to be produced and therefore, at least an opportunity be granted to him to produce the documents, as otherwise, the valid rights of the appellants to kudikidappu will be deprived of to them. RSA 472/08 3 3. Counsel for the respondent seriously opposes the submission on the ground that the appellants, in order to entitle themselves to kudikidappu right on redemption, have to prove also that their annual income does not exceed Rs.2000/-, in view of the explanation to Section 2(25) of the Kerala Land Reforms Act. 4. The appellate court has observed that the predecessor in interest of the appellants has given evidence before the Land Tribunal that his monthly income is Rs.300/- per month, but, however, according to the counsel for the appellants, the said admission cannot be taken into account, as the evidence of the predecessor in interest of the appellants was being recorded by the Land Tribunal in view of the decision in S.N.D.P.'s case (cited supra). 5. All the same, it is worthy to note that the defendant in the suit has not entered the witness box at all during trial of the suit and the RSA 472/08 4 plaintiff cannot compel him also to appear before court to tender evidence, so as to enable him being confronted with the prior statement given before the Land Tribunal. The burden is on the mortgagee, who claims right under Explanation IV to Section 2 (25) of the Kerala Land Reforms Act, to establish both the ingredients for application of Explanation IV, namely, that he is not having land in excess of what is mentioned in Explanation IV and also that his income does not exceed Rs.2,000/- per annum. If the contention of the appellant's counsel is accepted, for want of any evidence on the side of the mortgagee/kudikidappukaran, who is the predecessor in interest of the present appellants, it has to be held that he had not established his contention so as to obtain right conferred under explanation IV to Section 2(25) of the Kerala Land Reforms Act. Thus, there is no meaning in providing an opportunity as requested for by the counsel for the appellants to produce certified copy of the RSA 472/08 5 document to show that Exhibit A5 property purchased by the defendant in the suit had been sold subsequently. 6. It is also brought to my notice by the learned counsel for the respondent that as far as this case is concerned, the decision in S.N.D.P.'s case (cited supra) will have no application at all, as this Court was dealing with a first appeal, wherein, the question considered was as to whether the trial court was justified in looking into the evidence that was adduced before the Land Tribunal. This is a case wherein, by reason of Section 125(6) of the Kerala Land Reforms Act, the first appellate court was entitled to look into the evidence adduced before the Land Tribunal as well for the reason that for the purpose of appeal, the decision of the Land Tribunal, on reference under Section 125(3), will also be deemed to be part of the finding of the civil court and without looking into the evidence adduced before the Land Tribunal, the RSA 472/08 6 appellate court cannot consider the correctness of the finding entered into by the Land Tribunal in the appeal filed against the decree in the suit. 7. The position canvassed for the respondent is tenable. Viewed in that way also, there is no merit at all in the contentions advanced on behalf of the appellants. There is, thus, no merit at all in this appeal and there is no question of law and much less, any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. This Regular Second Appeal, in the circumstances, is dismissed in limine, refusing admission. 25th July, 2008 (K.P.Balachandran, Judge) tkv