SUJATHA Vs. MARIAYAMMA XAVIERAND

JUDGEMENT

(1.) This petition under Art. 227 of the Constitution of India is in challenge of Ext. P10, order dated 10.03.2010 on E.A. No. 434 of 2009 in E.P. No. 208 of 2007 in O.S. No. 688 of 2005 of the Court of learned Additional Munsiff, Alappuzha. First respondent is no more and as the 6th respondent who is present in person states, respondents 2 to 6 are legal representatives of deceased 1st respondent. The 6th respondent also holds power of attorney of respondents 2 to 5. Since the 6th respondent appeared in person and the issue involves questions of law and fact, I sought the assistance of Shri Sajan Varghese, Advocate who was appointed Amicus Curiae for the purpose. I have heard learned counsel for petitioner, Shri Sanal Kumar and Shri Sajan Varghese.

(2.) Respondents sought execution of the decree in O.S. No. 688 of 2005 in E.P. No. 208 of 2007 for recovery of possession of the homestead occupied by petitioner and ten cents appurtenant to it. Petitioner claimed that she belongs to the Hindu Sambava Community which is recognized as a Scheduled Caste as per Presidential Notification issued under Art. 340 of the Constitution, that she is entitled to kudikidappu over the homestead and land appurtenant and hence is not liable to be evicted from the said homestead and land in view of S. 3 of the Kerala Prevention of Eviction Act, 1966 (for short, "the Act"). Learned Munsiff negatived the contention holding that petitioner has not obtained purchase certificate from the Land Tribunal (for short, "the Tribunal"), her application - O.A. No. 60 of 2008 dated 18/06/2008 is pending before the Tribunal, there is no evidence regarding right of kudikidappu claimed by petitioner and her earlier application for the purpose was dismissed by the Tribunal. The executing Court also found that there is no evidence to show that petitioner belongs to the Scheduled Caste. On the above findings objection raised by petitioner was overruled and E.A. No. 434 of 2009 filed by petitioner under Section 47 of the Code of Civil Procedure (for short "the Code") was dismissed.

(3.) Shri Sanal Kumar, learned counsel for petitioner contended that under S. 3 of the Act there is a statutory ban on a landlord evicting a kudikidappukaran from his holding if he is a member of any Scheduled Caste or Scheduled Tribe. According to the learned counsel, the non obstante clause in S. 3 of the Act is sufficient to show that notwithstanding that respondents have obtained a decree for eviction in their favour, that decree cannot be executed as petitioner is a member of the Scheduled Caste and is a kudikidappukari. Learned counsel has invited my attention to Ext. P9, photocopy of certificate issued by the Tahsildar, Kuttanadu where it is certified that petitioner belongs to the Hindu Sambava Community which is recognized as Scheduled Caste (as per the Presidential Notification issued under Art. 340 of the Constitution). Learned counsel also invited my attention to the previous proceedings in the present suit and other litigations where according to the petitioner, the Tribunal found that the predecessor-in-interest of petitioner is a kudikidappukaran, that finding was accepted by the Civil Court and it has become final. On account of that finality, respondents cannot contend that petitioner is not a kudikidappukari in respect of the homestead and the land appurtenant to it. In that view of the matter, the executing Court ought to have allowed the objection raised by petitioner under S. 3 of the Act.