ASOKAN, S/O BHARATHAN Vs. SREEMAD JANARDHANA DEVASOM

JUDGEMENT

(1.) Defendants 1, 2, 4 and 9 in O.S. No. 371 of 2004 of the Court of learned Munsiff, Kochi are the appellants before me challenging the decree for prohibitory injunction granted by that Court and confirmed by the first appellate court in A.S. No. 12 of 2008.

(2.) Respondents 1 and 2/plaintiffs claimed title and possession of the suit property as per Ext.A1, document of the year, 1926 concerning plaint A schedule which is 76 cents. Plaint B to G schedules form part of plaint A schedule and are allegedly occupied by defendants by way of kudikidappu. Respondents 1 and 2 wanted appellants and other defendants to be restrained from trespassing into any part of plaint A schedule excluding the 3 cents which they are entitled to occupy by way of kudikidappu. Appellants and others contended that respondents have no right over plaint A schedule and that they are entitled to the protection of Sec.79A of the Kerala Land Reforms Act (for short, "the Act"). They also raised certain other contentions as to how they came into occupation of plaint B to G schedules. Trial court found that appellants and others are kudikidappukars in the respective plots occupied by them and that their entitlement is only to occupy 3 cents each since the property falls within the local limits of Kochi Corporation. Trial court granted decree for prohibitory injunction restraining appellants and others from trespassing into plaint. A schedule excluding the 3 cents each in their occupation as shown by Advocate Commissioner in Exts.C1 (a), plan. Trial court also directed that Ext.C1 (a), plan be appended to the decree. That has been confirmed by the first appellate court. Hence the second appeal.

(3.) Learned counsel for appellants and defendants 1, 2, 4 and 9 contend that so far as appellants have not obtained purchase certificate under provisions of the Act as if they are kudikidappukars, occupation of appellants cannot be restricted to 3 cents each which they could have obtained by way of kudikidappu. But, now that they are in occupation of more area than 3 cents and hence courts below are not justified in granting a decree for prohibitory injunction. Reliance is placed on the decisions in Kurian Vs. Vasu & Anr.,1976 KerLT 52 and Kannan Vs. Land Tribunal, 1978 KerLT 653.