SREEDHARAN Vs. ITTY

JUDGEMENT

(1.) The appellants are defendants in the suit, 2nd appellant being the wife of the 1st appellant. The suit was one for declaration of the easement with respect to a pathway leading to the kudikidappu purchased by the respondent plaintiff in the proceedings in O. A. No. 138 of 1970 on the file of the Land Tribunal, Pallom. The Trial Court granted the relief, and the first appellate court in appeal has confirmed the judgment and decree of the Trial Court.

(2.) In this second appeal the appellants have taken various contentions. Firstly, the counsel for the appellants submitted that the suit itself was misconceived and was not maintainable either in law or on facts. He relied on the definition of S.2(25)(b) of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969, hereinafter referred to as the Act, the relevant portion of which lays down as follows:

(3.) The relief sought in the suit according to the appellants' counsel, relates to a question which was required to be determined by or under the Act Under S.9 of the Code of Civil Procedure the civil court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The submission made by the counsel for the appellants is that in view of the fact that application O. A. No. 138 of 1970 under S.80B of the Act for the purchase of kudikidappu right was pending before the Land Tribunal, kudikidappu right being a question to be decided exclusively by the Land Tribunal, and in view of the inclusive definition given to "kudikidappu" so as to bring within its sweep the easement right also, civil court had no jurisdiction to deal with the matter by virtue of the provisions contained in S.125(1) of the Act. In this context it would be advantageous to refer to what the respondent plaintiff was entitled to purchase under S.80A(3) of the Act. That section provides as follows: