KASSIM RAWTHER Vs. MYTHEEN BEEVI

JUDGEMENT

(1.) Pursuant to a decree for specific performance of contract, a document of conveyance was executed in favour of the decree holder through court. The decree holder applied for delivery of possession of the property on the strength of the said instrument. When Amin went to the property to effect delivery the present appellant offered resistance and obstructed delivery, contending that he is kudikidappukaran of the building situated in the property. The decree holder filed aa application for removal of obstruction, under O.21 R.97 of the Code of Civil Procedure (for short the Code). The execution court allowed the application holding that "no application under O.21 R.97 would lie at the instance of an obstructor in anticipation of bis dispossession in execution of a decree to which he is not a party". The lower appellate court, though differed from the reasoning of the execution court, dismissed the appeal holding that the question of kudikidappu does not arise for consideration and that the appellant has not proved that he has any right, title or interest in the property. It was also found that "the appellant is set up by the 6th defendant for the purpose of delaying the execution".

(2.) Both sides agreed that the reasoning of the execution court is unsupportable in law. Evidently the ratio in Prabhakaran v. Prakashan ( 1985 KLT 225 ) was misapplied by the execution court. This is not a case where the obstructor has filed an application for adjudication of his right to possession under a right or title. The application is under O.21 Role 97(1), complaining of resistance or obstruction caused by the appellant. Hence there is no question of any anticipatory application against dispossession. But the lower appellate court held that the obstruction was occasioned without any valid ground. That finding is challenged in this appeal.

(3.) Learned counsel for the appellant contended that the lower appellate court ought to have directed the execution court to refer the claim of kudikidappu (raised by the appellant) to the Land Tribunal, as provided in S.125(3) of the Kerala Land Reforms Act ('KLR. Act' for short). On 6-3-1987 the decree holder filed the application under O.21 R.97(1) of the Code. On 9-11-87, counsel for the appellant reported that be has no evidence. On 7-1-1988 the decree holder filed an application for permitting him to cross examine the obstructor. Though that was allowed, the obstructor was not cross examined, presumably because the obstructor did not want to adduce any evidence on his part. Learned counsel for the appellant sought to justify the aforesaid stand by contending that the execution court should have referred the matter to the Land Tribunal for determining the question of kudikidappu raised by the appellant. The decision of a Bench of five Judges of this Court in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ) was cited in support of this contention that contravention of the provisions of S.125(3) is a matter of jurisdiction and not merely one relating to procedure.