DEVASAHAYAM RAJU Vs. DEVASAHAYAM SOMAN

JUDGEMENT

(1.) The Defendant in a suit for recovery of possession of the plaint 'B' schedule building and for declaration of title and possession over the plaint 'A' schedule property and for a permanent injunction restraining him from interfering with the possession of the Plaintiff over plaint 'A' schedule property is the Appellant in this Second Appeal. The suit was filed against the Defendant by his younger brother. The younger brother was employed in Bombay and in the Gulf countries and he took an assignment of the plaint 'A' schedule property on 27th June 1977 under Ext. A-1. He put up a building in the property. That building is shown as 'B' schedule to the plaint. While the Plaintiff was away on employment his parents along with the Defendant who appears to be their eldest son were residing in the building and looking after the property. After the Plaintiff came back dispute appears to have arisen between the parties and that led to the suit giving rise to this Second Appeal.

(2.) Originally the Plaintiff sued only for a declaration of his title and possession and for a permanent injunction restraining the Defendant from interfering with his possession of the entire suit property. In answer to the said suit the Defendant set up a case that the plaint schedule property was purchased in the name of the Plaintiff by the parents by expending their own money and that the building in the property was put up by the parents with their money with the result that the Plaintiff had neither title nor possession over the plaint schedule properties. Subsequently the Plaintiff amended the suit by adding a prayer for recovery of the building from the Defendant scheduling the building as plaint 'B' schedule. In answer thereto the Defendant contended that the Plaintiff has no title, that the title if any of the Plaintiff was barred by adverse possession, that the mother and the Defendant were kudikidappukars in respect of the building and hence they could not be evicted. The Defendant reiterated the contention that the building was constructed by the father and the mother with their own funds. The trial court among other issues raised issue No. 7 as to whether the Defendant has kudikidappu right over 'B' schedule building. After deciding the issue on title, instead of referring issue No. 7 to the Land Tribunal for decision as laid down in Chacko Kochu Vs. Abraham 1977 K.L.T. 868 the trial court purported to relegate issue No. 7 to the execution stage saying that the issue regarding kudikidappu arises at the time of actual recovery of possession. Finding that the Plaintiff has title and possession over the plaint schedule property the trial court granted a decree to the Plaintiff declaring Plaintiff's title and possession over plaint 'A' schedule property and restraining the Defendant by a perpetual injunction from committing waste, cutting down trees and from destroying the boundaries of the plaint 'A' schedule property. It was also held that the Plaintiff was entitled to recover possession of 'B' schedule building from the Defendant through court subject to the final decision on the claim of kudikidappu raised by the Defendant with regard to the 'B' schedule building. The Defendant went up in appeal. The Plaintiff filed a Memorandum of Cross Objections contending that the finding on issue No. 7 entered by the trial court was wrong and that no question of kudikidappu arose in this case on the pleadings and that the Plaintiff ought to have been given an unconditional decree. The lower appellate court on a re-appraisal of the relevant evidence came to the conclusion that the Plaintiff is entitled to have his title and possession declared over the plaint 'A' schedule property but that the trial court was right in relegating the issue of kudikidappu to a subsequent stage. As a consequence the lower appellate court dismissed both the appeal and the Memorandum of Cross Objections.

(3.) This Second Appeal is filed by the Defendant raising the question as to whether the courts below were right in law in relegating issue No. 7 for decision to a subsequent stage and granting a decree to the Plaintiff on the scheme of Sec. 125 of the Kerala Land Reforms Act. The Plaintiff has filed a Memorandum of Cross Objections contending that no question within the meaning of Sec. 125(3) of the Kerala Land Reforms Act arises at all in this case and that an unconditional decree for recovery of possession of the plaint 'B' schedule building ought to have been granted to the Plaintiff.