AMMUKKUTTY AMMA KRISHNAKUMARI Vs. RAJASEKHARAN NAIR

JUDGEMENT

(1.) RESPONDENT filed O.S. No.312 of 1984 in the court of learned Additional Munsiff-I, Neyyattinkara for redemption of a mortgage. Petitioner/judgment debtor No.4 who alone contested the suit claimed to be an assignee from her father who himself was an assignee-mortgagee. It was also her claim that she redeemed the sub-mortgage created by her father in favour of one Ramakrishnan Nair as per release deed No.1617 of 1979. She claimed to be a cultivating tenant of the suit property and also a kudikidappukari in the building in the said property claiming that the building was constructed by her father (an assignee-mortgagee) in the year, 1970 spending `.50,000/-. The claim of tenancy and kudikidappu were referred to the Land Tribunal for a finding. The Land Tribunal found against both the claims and answered the reference accordingly. Though learned Munsiff accepted the findings on reference the suit was dismissed for other reasons which respondent challenged in A.S. No.780 of 1994 in the court of learned Sub Judge, Neyyattinkara. The appeal was allowed and the case was remitted to the trial court for fresh disposal. Petitioner challenged the remand order in this Court in C.M.A. No.50 of 2000. This Court allowed the C.M. Appeal in part confirming finding of the trial court on issue No.4 (relating to the claim of tenancy) but interfered with the finding of the Land Tribunal regarding kudikidappu and directed that issue regarding kudikidappu be referred to the Land Tribunal for a finding at the time of redemption (in accordance with Explanation-IV to Section 2 (25) of the Kerala Land Reforms Act - for short, "the Act"). Executing court referred the issue regarding kudikidappu to the Land Tribunal. The Land Tribunal took the reference on file as R.C. No.2 of 2009 and deputed the Revenue Inspector, the authorised officer to inspect the property and submit report. He did so. RESPONDENT produced Exts.P1 to P3 to contend that petitioner is residing along with her husband in the property belonging to the latter. It is claimed that counsel for petitioner in the Land Tribunal was not able to take part in the proceedings allegedly on account of his acute illness. The Land Tribunal by Annexure-A6, order dated July 27, 2010 answered the reference against petitioner holding that she is not a kudikidappukari in the building in the suit property. That finding was accepted by the executing court and it ordered eviction. The order of the executing court and the finding of the Land Tribunal on reference are under challenge in this proceeding. Learned counsel for petitioner contended that petitioner did not get sufficient opportunity to contest the proceedings in the Land Tribunal, the finding of the Land Tribunal that petitioner is residing with her husband in the property belonging to the latter is not correct as is evident from the fact that even in the execution petition, address of petitioner is given as that of the building in the suit property. It is also the contention of learned counsel that the Revenue Inspector was not competent to give any such report in the matter of kudikidappu and hence the Land Tribunal was not correct in acting upon the said report of Revenue Inspector which itself according to the learned counsel is based on hearsay information and without verifying the relevant documents on the question whether petitioner is staying in the building in the suit property. Learned counsel contended that at the time the matter was being agitated before the Land Tribunal, Advocate Arun V.G. who was conducting the case on behalf of petitioner was seriously laid up in the hospital on account of dengue fever, his condition was so critical that he had to get blood transfusion even from the members of the local bar and it was in such a situation that the Advocate could not take part in the proceedings. It is contended that well before the Land Tribunal passed Annexure-A6, order an application was preferred on behalf of the petitioner on 21.07.2010 (its copy is Annexure-A5) requesting the Land Tribunal to reopen the case for further evidence but, no order was passed on that application. Instead, the Land Tribunal proceeded to pass Annexure-A6, order on July 27, 2010. Learned counsel for respondent contended that the very claim of a mortgagee setting up kudikidappu right in the property given as security is abhorrent to good conscience and playing upon the property of indigent mortgagor as the Supreme Court has stated in Victoria v. K.V.Naik and others ((1997) 6 SCC 23). It is also contended by learned counsel that since even as per the version of petitioner that she has no independent possession of the property as she is claiming under her father, question of status of kudikidappukari does not arise in view of the decision of this Court in Perila Janardhanan v. Vellachi Chinna (1972 KLT 207). According to the learned counsel, evidence produced before the Land Tribunal would show that petitioner is residing with her husband in the property belonging to the latter and hence her claim that she is in occupation of the building to satisfy the requirements of kudikidappukari as defined in Sec.2(25) of the Act does not arise. Learned counsel expressed reservation about alleged filing of Annexure-A5, petition before the Land Tribunal on 21.07.2010. It is submitted that on all occasions as and when petitioner filed any petition, copy of the same was given to the respondent except in the matter of Annexure-A5, petition, the information that the counsel has received from the client is that register maintained in the Land Tribunal does not contain any entry as to filing of Annexure-A5, petition in the Land Tribunal on 21.07.2010 which is justified by the report given by the Land Tribunal in answer to the direction given by this Court. According to the learned counsel, possibility of Annexure-A5, petition being introduced in the records after filing of this revision cannot be ruled out.

(2.) SO far as maintainability of the claim of petitioner as kudikidappukari is concerned, I do not consider it necessary to go in detail into the correctness of the claim made by either side in view of the order I proposed to pass in this petition. But I must bear in mind that this Court while disposing of C.M.A. No.50 of 2000 set aside the finding of the Land Tribunal on kudikidappu obviously on the basis of Explanation-IV to Sec.2(25) of the Act and the relevant decisions on the point which required the claim of kudikidappu to be agitated and decided at the time of actual redemption and directed reference of the question to the Land Tribunal at the time of eviction. That judgment has become final and the parties are bound by it. This Court also cannot take a different stand. Hence the direction in the judgment in C.M.A. No.50 of 2000 has to be complied. Learned counsel for respondent contended that this Court in the judgment in C.M.A. No.50 of 2000 directed that the question of kudikidappu will be decided by the court below at the appropriate state and hence this Court has to decide the issue. Assuming so, the executing court referred the question of kudikidappu to the Land Tribunal for a finding and respondent did not challenge that order. Explanation-IV to Sec.2(25) of the Act still remains in the statute book. Hence at this stage, I am of the view that the contention of respondent that executing court should have decided the claim of kudikidappu raised by petitioner before the question was referred to the Land Tribunal cannot be accepted.

(3.) ON the question of petitioner occupying the building in the suit property, learned counsel for petitioner relied on the address of petitioner given in the execution petition (Annexure-A2) while learned counsel for respondent has placed reliance on Exts.B1 to B3. I do not intend to go into that question since in view of what I have stated above I am inclined to give an opportunity to the petitioner to adduce evidence. I make it clear that it is open to both sides to place all their contentions before the Land Tribunal.