RAJMOHANAN v. THINKK

W.P.(C) No.28200 of 2008: 2 : *5. SETHUMADHAVAN, KOTTARATHIL HOUSE, PALLIKUNNU AMSOM DESOM, PALLIKUNU P.O. KANNUR DISTRICT. *6. BHAGYALAKSHMI, DO....DO......(R2 to R6 ARE DELETED FROM PARTY ARRAY AS PER ORDER DATED 31.10.08 IN I.A.NO.13678 OF 2008) BY ADV. SRI.V.RAMKUMAR NAMBIAR BY ADV. SRI.P.U.SHAILAJAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.28200 OF 2008PETITIONER(S) EXHIBITSEXHIBIT P1:TRUE COPY OF JUDGMENT DATED 27.10.1992 INS.A.NO.127/1985 PASSED BY THIS HON'BLE COURT. EXHIBIT P2:TRUE COPY OF ORDER DATED 17.1.2008 IN E.P.NO568/2006 INO.S.NO.440/1970 PASSED BY MUNSIFF'S COURT, KANNUR. EXHIBIT P3:TRUE COPY OF PETITION (E.A.89/2008) IN E.P.NO.568/2006 INO.S.NO.440/1970 FILED BEFORE THE MUNSIFF'S COURT,KANNUR. EXHIBIT P4:TRUE COPY OF COUNTER IN E.A.NO. 89/2008 INE.P.NO.568/2006 IN O.S.NO.440/1970 FILED BEFORE THEMUNSIFF'S COURT, KANNUR.EXHIBIT P5:TRUE COPY OF ORDER DATED 22.2.2008 IN E.A.NO.89/2008 INE.P.NO.568/2006 PASSED BY MUNSIFF'S COURT, KANNUR.RESPONDENT(S) EXHIBITSEXT.R1(A)TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERSHEREIN IN E.P.NO.568/2006 BEFORE THE MUNSIFF'S COURT, KANNUR.EXT.R1(B)TRUE COPY OF THE COMMISSION REPORT, THE PLAN AND THE ACCOUNTS REGARDING THE IMPROVEMENTS IN THE SAID PROPERTY AS SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.NO.440 OF 1970 DATED 7.3.1982. EXT.R1(C)TRUE COPY OF THE ORIGINAL PRINT OUT OF PHOTOGRAPH ON PAPER OF THE SAID HOUSE TAKEN BY THE GRAND DAUGHTER OF THE PETITIONER. //TRUE COPY//P.S. TO JUDGE. V.CHITAMBARESH, J.-------------------------------W.P.(C) No. 28200 of 2008-------------------------------Dated this the 12th day of September, 2012J U D G M E N TThe suit for redemption of mortgage was finallydecreed in S.A.No.127 of 1985 on the file of this Court relegatingthe plea of kudikidappu to be considered in execution. Therelevant portion of the judgment in the Second Appeal isextracted hereunder:-“7. ......................But Explanation II-A of sec.2(25) of the Land Reforms Act enables a person whowas in occupation of any land and a dwelling housethereon on 16th day of August 1968 and continued tobe in such occupation till 1-1-1970 to claimkudikidappu rights. He shall be deemed to be akudikidappukaran provided the conditionsprescribed in the Explanation are fulfilled. It maybe contended that Explanation II-A is not applicableto the present case since the claim of kudikidappu ismade by a mortgagee in possession. To such aperson it is Explanation IV that applies. There isnothing in Explanation IV disentitling appellant fromclaiming kudikidappu rights. That explanation interalia provides that where a mortgagee with W.P.(C) No.28200 of 2008 2possession erects for his residence a homestead orresides in a hut already in existence on the land towhich the mortgage relates, he shall,notwithstanding the redumption of the mortgage,be deemed to be a kudikidappukaran in respect ofsuch homestead or hut. That is subject to theconditions prescribed in clauses (a) and (b) of theExplanation. Kudikidappu right is a special rightconferred on certain persons under the LandReforms Act. By the merger of the leasehold rightin respect of the building, the mortgagor has to bepermitted to redeem the entire mortgage includingthe subject matter of the lease. But suchredemption can only be subject to the provisionscontained in the Land Reforms Act. Explanation II-A commences with the non-obstante clause“notwithstanding any judgment, decree or order ofany court”. The provisions contained inExplanation II-A and Explanation IV to sec.2(25) ofthe Land Reforms Act may therefore enableappellant to claim kudikidappu rights. Since thatclaim has not been considered by the courts belowand it arises for consideration only at the time ofredemption, I am of the view that the decision inthe second appeal will not be a bar in raising that W.P.(C) No.28200 of 2008 3claim at the time of execution. When such a plea israised by the appellant, it is for the executing courtto consider the same and render a decision in thelight of the evidence tendered and the lawapplicable. A pronouncement on that aspect is notwarranted in this second appeal in the absence ofany substantial question of law having beenformulated in the appeal memorandum.”2. The decree holders thereafter deposited themortgage money due under the decree and applied for deliveryof the decree scheduled property. The petitioners herein whoare the legal heirs of one of the mortgagees in possessionobjected to the executability of the decree itself. The petitionerscontended that a composite decree for redemption of mortgageis bad and that a separate preliminary and final decree iswarranted. The objection filed in this regard to the executionpetition was overruled by the execution court which ischallenged in C.R.P.No.144 of 2008 disposed of. The executioncourt after overruling the objection ordered delivery of theproperty to the decree holder. It was at the point of time did W.P.(C) No.28200 of 2008 4the petitioners file E.A.No.89 of 2008 to refer the question oftenancy to the Land Tribunal. The contention of the petitionersis that they are entitled to the benefit of Explanation II-A andExplanation IV to Section 2 of the Kerala Land Reforms Act,1963. It is the case of the petitioners that a mortgagee inpossession is entitled to 'kudikidappu' right as recognised by theKerala Land Reforms Act. It is the further case of thepetitioners that such a question needs to be referred to the LandTribunal under Section 125(3) of the Kerala Land Reforms Act.The court below has however dismissed E.A.No.89 of 2008 filedfor reference on the ground that such a plea was not raised inthe objection filed to E.P.No.568 of 2006. 3. I am afraid that the execution court hascompletely lost sight of the reservation contained in thejudgment in S.A.No.127 of 1985 referred to above. The right of'kudikidappu', if at all any, can spring up only after themortgage money is deposited and delivery of possessionordered. The petitioners have preferred the execution W.P.(C) No.28200 of 2008 5application for reference to the Land Tribunal immediately afterdelivery was ordered. The petitioners get a right to seek forreference only when the decree is found to be executable afterover ruling their objection in that regard. It is not as if thepetitioners had not raised the plea of fixity of tenure at all in thesuit in which case the principles of res-judicata may operate.Kudikidappu is also one form of fixity of tenure which finds aplace in the written statement filed to the suit. The court belowwas therefore in error in holding that the plea of kudikidappuraised by the petitioners is barred by constructive res-judicata.It is ofcourse true that the execution court has to considerwhether the plea of kudikidappu 'arises' or is merely 'raised'.This precise question has been omitted to be considered by theexecution court in the order impugned. Whether a prima faciecase for upholding the plea of 'kudikidappu' exists has to beconsidered at the threshhold by the execution court itself. 4. I have no option but to set aside the impugnedorder and remit E.A.No.89 of 2008 in E.P.No.568 of 2006 in W.P.(C) No.28200 of 2008 6O.S.No.440 of 1970 for fresh consideration. The court of theMunsiff of Kannur shall reconsider the issue in the light of theobservations above within a period of two months from the dateof receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. V.CHITAMBARESH,Judge. nj.