GOPALAKRISHNAN Vs. SAROJINI

JUDGEMENT

(1.) The plaintiff in O. S. No. 14 of 1976, Subordinate Judge's Court, Parur is the appellant. Defendants 2 and 3 in the suit are the respondents in this appeal. Ext. A1 agreement dated 4-5-1974 was entered into between the plaintiff and the 1st defendant to sell the plaint property, an extent of 40 cents of land together with the building and the trees standing thereon. The 2nd defendant was formerly the wife of the Ist defendant. She was divorced as per order of the court. The 3rd defendant is the daughter of the 2nd defendant born to her by the 1st defendant. The 1st defendant conceded that he is prepared to execute the sale deed on receipt of the balance of consideration due, Rs. 2,390/-, out of Rs. 8,000/- Defendants 2 and 3 contested the suit. They contended that the 1st defendant had no capacity to enter into an agreement (Ext. A1); that defendants 2 and 3 had a charge over the plaint property as per the decree in O. S. No. 582 of 1970 and that at any rate they are residing in the plaint property and are entitled to kudikidappu right. The Trial Court found that defendants 2 and 3, strangers to Ext. Al contract, have no right over the property and are incompetent to question the dealings of the 1st defendant. It was also found that defendants 2 and 3 failed to substantiate that there was any charge as per the decree in O. S. No. 582 of 1970. The plea of kudikidappu was referred to the Land Tribunal. The Tribunal held that defendants 2 and 3 have no kudikidappu right. That was adopted by the Trial Court (Subordinate Judge, Parur). The suit was decreed. A decree for specific performance of Exhibit A1 was passed. The 1st defendant was directed to put the plaintiff in possession of the plaint property. In default, it was held that the plaintiff will be put in possession of the property and building through court after evicting the defendants.

(2.) From the judgment of the Subordinate Judge, Parur dated 28-1-1980, defendants 2 and 3 filed A. S. No. 191 of 1980 before the District Court, Parur. From a reading of the judgment of the lower appellate court it is seen that the finding of the Subordinate Judge that defendants 2 and 3 are not entitled to kudikidappu right was attacked. The learned District Judge took the view that defendants 2 and 3 are not parties to Ext. A1 contract and the question as to whether they are kudikidappukars will arise for consideration, only if the plaintiff seeks to recover possession of the building from them independently of the contract, Ext. A1. It was held that defendants 2 and 3 are not proper parties to the suit. In this view, they were removed from the party array and the plaintiff was given a decree for specific performance and for recovery of possession of the suit property only against the 1st defendant. The finding of the Land Tribunal that defendants 2 and 3 are not kudikidappukars was set aside. It was left open to be decided in future in appropriate proceedings that may be necessary, when the plaintiff seeks to recover the building from defendants 2 and 3. The appeal was allowed in part. The plaintiff has come up in Second Appeal.

(3.) The following question was formulated as a substantial question of law, at the time of admission of the Second Appeal on 12-8-1983: