TAIKANDY THEKKUMBALATH MADHAVI AMMA Vs. M N KESAVAN

JUDGEMENT

(1.) The challenge in this Writ Petition is against the order dated 08/07/2004 in OS No. 8 of 2001, on the file of the Court of the Munsiff, Kozhikode II, by which the Court below rejected the prayer made by the writ petitioners / defendants to refer the question of tenancy to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act.

(2.) The respondents in the Writ Petition filed the suit for recovery of possession of the plaint schedule property on the basis of their title. The plaint schedule property is having an extent of 11.8 cents at Nellikode Village in Kozhikode Taluk. The averments in the plaint would indicate that the property in question and another item of property belonged to Narayanan Nair as per a "Kanacharth" executed in 1921 in his favour by his uncle and karanavar of the tarwad. The first plaintiff is the son of Narayanan Nair and the second plaintiff is the widow of Narayanan Nair. The further case of the plaintiff is that one item of property was sold by Narayanan Nair and in the remaining property there was a kudikidappu. The plaint schedule property is the area excluding the kudikidappu. The plaintiffs' case is that Narayanan Nair went to Bangalore where his son was employed and at that time, he entrusted the property to his sister Madhavi Amma (first defendant) to look after the property. Defendants 2 and 3 are the daughters of the first defendant. Narayanan Nair died in the year 1985 at Bangalore. The first plaintiff, son of Narayanan Nair, was working at Bangalore in Military Engineering Service. In 1983, Narayanan Nair executed a Will in favour of the first plaintiff. The first plaintiff wanted to settle at Calicut and when vacant possession of the property was demanded, the defendants did not accede. Therefore, the suit was filed.

(3.) The defendants admitted the title of Narayanan Nair. According to them, the plaint schedule property was leased out by Narayanan Nair in favour of the first defendant in the year 1957, fixing annual "purappad" of Ps.75. The portion of the land covered by the kudikidappu was assigned to kudikidappukars and the balance extent of 11.8 cents is being enjoyed by the defendants as cultivating tenants. It was also contended by the defendants that they are entitled to fixity of tenure and that the question of tenancy is liable to be referred to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act.