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Paul Alias Varkey Vs. Narayanan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 1208 of 1972
Judge
Reported inAIR1974Ker154
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 2; Tenancy Law; Kerala Land Reforms Act, 1964 - Sections 79A and 125(3); Specific Relief Act, 1963 - Sections 37
AppellantPaul Alias Varkey
RespondentNarayanan and anr.
Appellant Advocate S. Narayanan Poti and; N. Sankarasubban, Advs.
Respondent Advocate N. Raghava Kurup,; M.S. Narayana Pillai,; S.R. Sivaraman
DispositionPetition allowed
Excerpt:
.....any absolute immunity against process of civil court - act only confers protection on kudikidappukaran from eviction from his kudikidappu - act enables kudikidappukaran to purchase rights of owner of land in respect of site of kudikidappu and adjoining area of 10 cents or less as specified in act depending upon locality - where kudikidappukaran tries to interfere with rights of owner in regard to latter's possession and enjoyment of rest of land - kudikidappukaran liable to be restrained from doing so by order of injunction issued by civil court. - - that subsequent to the decree in the prior suit, the defendants had expanded the plinth area of the kudikidappu and had also started interfering with the plaintiff's right to make use of the remaining portion of his..........been compelled to institute the present suit, namely. that subsequent to the decree in the prior suit, the defendants had expanded the plinth area of the kudikidappu and had also started interfering with the plaintiff's right to make use of the remaining portion of his property for purposes of construction of buildings for his own industrial and residential use, there should have been no difficulty for the subordinate judge to realise that a fresh cause of action has clearly arisen in favour of the plaintiff warranting the institution of the present suit. the relief claimed in the present suit cannot be secured by the plaintiff by his resorting to proceedings against the defendants under order xxi, rule 32, civil p. c. in enforcement of the earlier decree passed in o. s. no. 349 of.....
Judgment:
ORDER

V. Balakrishna Eradi, J.

1. The petitioner herein is the plaintiff in O. S. No. 501 of 1971 on the file of the Munsiff's Court, Cochin. The suit is for a permanent injunction restraining the defendants from interfering with the plaintiff's right to make use of the plaint schedule property for purposes of construction of buildings for industrial and residential purposes of the plaintiff after separatelv demarcating ten cents of land immediately surrounding the kudikidappu of the defendants on which portion of the property the plaintiff does not want to put up any construction or interfere with whatever rights the defendants may have under the provisions of the Kerala Land Reforms Act, 1963 fAct 1 of 1964). Pending the said suit the plaintiff moved the trial Court for the grant of a temporary in-junction restraining the defendants from instructing the plaintiff in demarcating the ten cents of land bv putting up fence separating the said portion from the rest Of the property and using the remaining portion of the property for building purposes of the plaintiff. The trial Courtafter hearing both sides and after bestowing careful consideration on all the relevant aspects allowed the plaintiff's prayer for the grant of a temporary injunction. From the said order the defendants preferred an appeal before the Subordinate Judge, Cochin. That appeal was disposed of by the Subordinate Judge under his judgment dated the 28th July, 1972, whereby he dissolved the order of interim injunction passed bv the trial Court. The plaintiff has come upwith this revision petition challenging the legality and correctness of the decision so rendered bv the lower appellate Court.

2. The plaintiff had instituted an earlier suit - O. S. No. 349 of 1959 - in the Munsiff's Court, Cochin praying for the grant of a permanent injunction restraining the same defendants from using any portion of the plaint schedule property beyond a radial distance of five koles from the kudikidappu building occupied by the defendants. That suit was decreed by the trial Court and the said decree was also confirmed on appeal. In 'the order now under revision one of the main grounds stated by the Subordinate Judge for dismissing the plaintiff's application for temporary injunction is that the present suit instituted bv the plaintiff is not maintainable in law in view of the earner decree alreadv obtained bv him against the defendants in O. S. No. 849 of 1959 and the plaintiff's remedy is only to resort to proceedings in execution of the said decree under Order XXI, 'Rule 32 of the Civil Procedure Code.

Another ground mentioned bv the Subordinate Judge is that even if it is to be assumed that the suit is maintainable, the question involved in the suit has to be referred to the Land Tribunal as per Section 125 (3) of Act 1 of 1964, since the defendants are kudikidappu-kars, and that the Civil Court has no power to grant any injunction against a kudikidappukaran. The defendants have put forward a contention that they have a right to make use of a latrine and urinal which are now existing in the portion of the plaintiff's land in respect of which the relief of temporary injunction has been prayed for bv the plaintiff, in view of Section 79-A of the Land Reforms Act which lays down that a kudikidappukaran is entitled to all rights accrued to him by custom, usage or agreement and which he was enjoying immediately before the commencement of the Act. Adverting to this plea raised by the defendants the learned Subordinate Judge has observed in his judgment that the said question can be considered only after evidence is adduced andsince the latrine and urinal are now found in the property the status quo has to be maintained till the disposal of the suit. It is in the light of the above reasoning that the Subordinate Judge has proceeded to hold that the 'plaintiff has no prima facie case for the issue of an injunction.'

3. I am constrained to observe that there is no substance in anv of the aforesaid grounds stated by the Subordinate Judge. If only the learned Sub-Judge had taken trouble to look into the papers before him and find out the scope of the earlier suit O. S. No. 349 of 1959 and the grounds stated bv the plaintiff as to why he has been compelled to institute the present suit, namely. that subsequent to the decree in the prior suit, the defendants had expanded the plinth area of the kudikidappu and had also started interfering with the plaintiff's right to make use of the remaining portion of his property for purposes of construction of buildings for his own industrial and residential use, there should have been no difficulty for the Subordinate Judge to realise that a fresh cause of action has clearly arisen in favour of the plaintiff warranting the institution of the present suit. The relief claimed in the present suit cannot be secured by the plaintiff by his resorting to proceedings against the defendants under Order XXI, Rule 32, Civil P. C. in enforcement of the earlier decree passed in O. S. No. 349 of 1959. The first ground stated bv the Subordinate Judge that the present suit is not maintainable is. therefore, manifestly erroneous and unsustainable.

4. Equally untenable Is the fur-Ither reason stated by the Subordinate Judge namely that the auestion involved in the present suit has to be referred to a Land Tribunal under Section 125 (31 of Act 1 of 1964 and that the Civil Court has no jurisdiction to issue an order of injunction. The plaintiff is not disputing in the suit the status of the defendants as kudikidappukars or their right to have the site of the kudikidappu assigned to them in conformity with the provisions contained in Act 1 of 1964. The question involved in the suit is only whether the kudikidappukars are entitled to prevent the plaintiff from making use of the remaining portion of the property after excluding an area of ten cents surrounding the kudikidappu and there is absolutely no scope for referring the said question to the Land Tribunal under Section 125 (3) of Act 1 of 1964.

5. The view expressed by the Subordinate Judge that the Civil Court has no power to grant any injunction against a kudikidappukaran is not correct or sound. None of the provisions in the Land Reforms Act confers on the Kudikidappukaran any absolute immunity against processes of a Civil Court. The Act has only conferred on the kudikidappukaran protection from eviction from his kudikidappu and enabled him also to purchase the rights of the owner of the land in respect of the site of the kudikidappu and an adjoining area of ten cents or less as specified in the Act depending up9n the locality where the building is situated. If a kudikidappukaran tries to interfere with the rights of the owner in regard to the latter's possession and enjoyment of the rest of the land he is certainly liable to be restrained from doing so bv an order of injunction issued bv a Civil Court.

6. The last ground mentioned by the Subordinate Judge for holding that the plaintiff had not made out a prima facie case is that the kudikidappukaran has claimed a right to use a urinal and a latrine situated outside the area of ten cents surrounding the kudikidappu and that this is a matter which can be considered only after evidence is adduced and that the status quo has to be maintained till then, since the latrine and urinal are now found in the property. Admittedly, the urinal and the latrine referred to by the defendants were not in existence on the property when the decree in the former suit was passed on 14-10-1961; nor have the defendants a case that those temporary structures were put UP bv the defendants pursuant to anv agreement or consent from the plaintiff. The resultant position is that they were merely unauthorised constructions put uP bv the defendants on the plaintiff's land and in respect thereof no right can be said to have accrued to the defendants by cus-tom, usage or agreement. Section 79-A of Act 1 of 1964 referred to and relied on by the Subordinate Judge can, therefore, have absolutely no application to the case.

7. Thus, it is clear that all the grounds mentioned by the Subordinate Judge for interfering with the order of the trial Court are incorrect and unsustainable and that there was no justification, at all, for dissolving the order of temporary injunction issued bv the trial Court.

8. In the result, I allow this civil revision petition, set aside the judgment of the Subordinate Judge and restore the order of injunction issued against the defendants bv the trial Court. The revision petitioner will set his costs of this revision petition from the respondents.


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