NUR MUHAMMED Vs. MOIDEEN ROWTHER

JUDGEMENT

(1.) The Writ Petition is filed seeking the following reliefs:

(2.) Petitioner is the defendant in O.S. No. 409 of 2007 on the file of the Munsiff Court, Palakkad. Suit is for injunction both prohibitory and mandatory, and the respondent is the plaintiff. Resisting the suit claim, petitioner/defendant in his written statement claimed kudiyirippu over the structure and its appurtenant land, from which he is sought to be evicted by a decree of mandatory injunction. An additional issue raised in the suit whether the claim of kudiyirippu canvassed by the petitioner/defendant has to be referred to the Land Tribunal for determination was considered as a preliminary issue by the court below. After hearing both sides, the learned Munsiff passed P3 order holding that the question of kudiyirippu does not arise for consideration in the suit. P3 order is challenged by the petitioner/defendant invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.

(3.) I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. Learned counsel for the petitioner submitted that since a decree of mandatory injunction seeking eviction from the structure occupied by the defendant is sought for in the suit, his plea of kudiyirippu has necessarily to be referred to and adjudicated upon by the competent authority, the Land Tribunal, as mandated under Section 125(3) of the Land Reforms Act. Observations made by the apex court in Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, 2007 13 SCC 565 are relied by the learned counsel to impress me that once the structure is demolished under a decree of mandatory injunction,, the person claiming kudiyirippu would be left with no remedy under law. In a suit for mandatory injunction seeking eviction of a party from a structure and a claim of kudiyirippu or kudikidappu is raised by the party sought to be evicted, according to the learned counsel, the question as to whether he is entitled to such claim arises for consideration and it has to be referred to the Land Tribunal for determination as mandated to the provisions of the Land Reforms Act. In the above decision relied by the learned counsel it is noticed that that the apex court has not laid down any proposition of law, but, true, it has not approved the opinion of the High Court in the granting of a decree of permanent injunction in mandatory form leaving the question of title open. There is nothing in the decision to indicate that in a suit for mandatory injunction where title of plaintiff is disputed for one reason or other by the defendant, whatever be the merit of that challenge, it has to be decided for granting the decree sought for. The above decision does not lend any assistance to the petitioner/defendant to sustain his challenge against P3 order.