KOMBANTE VALAPPIL IBRAHIM Vs. KADAVATH PURAYIL NARAYANAN

JUDGEMENT

(1.) The plaintiff in a suit for recovery of possession with arrears of rent as also for a decree of mandatory injunction is the appellant in the second appeal.

(2.) The suit property is an item measuring 1? cents of land and the structures therein. The said land belonged to Chirakkal Kovilakam. One Alikunhi obtained the property from the Kovilakam on kuzhikanam right. In the year 1961, the first defendant obtained the property from Alikunhi in terms of Ext.A1 marupat for putting up a commercial structure and was occupying the land after putting up the commercial structure proposed by him. The plaintiff is the successor in interest of the land under Alikunhi. The second defendant is the successor in interest of the first defendant. The case set out by the plaintiff in the plaint is that the second defendant has put up structures in the property contrary to the terms in Ext.A1 and therefore, the plaintiff is entitled to recover possession of the same from the defendants. The mandatory injunction sought in the suit is one directing the defendants to remove the unauthorized structures constructed by the second defendant. The second defendant, among others, contended that she is entitled to the protection of Sec. 106 of the Kerala Land Reforms Act, 1963 ('the Act'). The issue relating to the protection claimed by the second defendant under Sec. 106 of the Act was referred by the trial court to the Land Tribunal. The Land Tribunal answered the reference in favour of the second defendant. The decision on the said issue was accepted by the trial court and the suit was accordingly, dismissed. The plaintiff challenged the decision of the trial court in appeal. The appellate court, on a reappraisal of the materials on record, affirmed the decision of the trial court. The plaintiff is aggrieved by the concurrent decisions of the courts below. Hence this second appeal.

(3.) The learned counsel for the appellant contended that the entitlement of the benefits, if any, of the second defendant under Sec. 106 of the Act should have been decided by the trial Court itself without making a reference under Sec. 125(3) of the Act as the said question is not one falling within the scope of Sec. 125(3) of the Act. According to the learned counsel, the decisions of the courts below are liable to be set aside on that sole ground. Per contra, the learned counsel for the respondents supported the decisions of the courts below.