V SURENDRAN NAIR Vs. S RADHAKRISHNAN ASARI

JUDGEMENT

(1.) SECOND defendant in O.S.No.6/2006 on the file of Sub Court, Nedumangad is the appellant. First respondent is the plaintiff and second respondent, the first defendant. First respondent instituted the suit seeking a decree for declaration of his title, fixation of boundary and recovery of possession of plaint schedule properties. It is contended that plaint A schedule property, having an extent of 26= cents, originally belonged to the second respondent/first defendant under Exhibit A1 sale deed 2934/1986 of S.R.O., Vellanadu. On 26.2.1991, under Exhibit A2 sale deed, he assigned twenty cents of that property in favour of the first respondent. At the time of execution of the sale deed, second respondent agreed to put up a boundary. But, no boundary as such was put up. Appellant is residing in the house situated on the eastern portion of plaint A schedule property and he is now claiming plaint A schedule property and he has no right over the same and therefore, first respondent is entitled to a decree declaring his title to plaint A schedule property and also for fixation of boundary and for recovery of possession of plaint A schedule property from the possession of the appellant.

(2.) SECOND respondent remained ex parte. Appellant contended that plaint A schedule property has been in his possession and the property originally belonged to Gopala Pillai. Gopala Pillai granted a lease in favour of Sankara Pillai through a written agreement in 1961. While Sankara Pillai has been in possession of plaint A schedule property, as per an oral agreement, in 1968, he put the appellant in possession of the property. Thereafter, a written agreement was executed in 1976 and since then, he has been in peaceful possession of the property. It is contended that appellant is, therefore, entitled to fixity of tenure and in any case, he is entitled to kudikidappu right and first respondent is not entitled to the decree sought for.

(3.) ARGUMENT of the learned counsel is that when appellant claimed tenancy right, the suit should have been referred to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act and as learned Sub Judge has no jurisdiction to decide the question of tenancy, judgments of the courts below are not sustainable. It was also argued that in any case, when kudikidappu right is also claimed by the appellant, at least that question should have been referred to the Land Tribunal. Learned counsel finally submitted that identity of plaint B schedule property was not fixed and Commissioner has not properly demarcated the property covered under Exhibit A1 and hence, the decree granted is not sustainable.