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1977 Supreme(Ker) 221
Judges : T.KOCHU THOMMEN
CHACKO KOCHU - Appellant
Versus
ABRAHAM - Respondent
Case No : C. R. P. No. 4920 of 1976-H
Decided On : 09/26/1977
Advocates Appeared :
P.K. Balasubramanyan; For Petitioner M. V. Ibrahimkutty; V. Ahamed Kutty; For Respondents
The determination of the question of title before making a reference under S.125 of the Kerala Land Reforms Act is essential. The issue of tenancy or kudikidappu arises only if the plaintiff is found to be a landlord with title to the land.
Headnote:
Title - Land Dispute - The court held that the question of title must be determined before making a reference under S.125 of the Kerala Land Reforms Act. The court emphasized that the issue of tenancy or kudikidappu arises only if the plaintiff is found to be a landlord with title to the land.
Fact of the Case:
The 1st defendant in a suit for declaration of title and injunction questioned the title of the plaintiff and contended that he was a tenant or kudikidappukaran. The court referred the question of kudikidappu to the Land Tribunal under S.125 of the Kerala Land Reforms Act.
Finding of the Court:
The court found that the question of title should have been determined before making a reference under S.125. It emphasized that the issue of tenancy or kudikidappu arises only if the plaintiff is found to be a landlord with title to the land. The court set aside the order and allowed the Civil Revision Petition.
Issues: Questioning of plaintiff's title, reference under S.125, determination of title before reference
Ratio Decidendi: The court emphasized that the question of title must be determined before making a reference under S.125. The issue of tenancy or kudikidappu arises only if the plaintiff is found to be a landlord with title to the land.
Final Decision: The order under challenge was set aside, and the Civil Revision Petition was allowed. The parties were directed to bear their respective costs.
1. The revision petitioner is the 1st defendant in a suit for declaration of title and injunction. In the written statement filed by the 1st defendant, he questioned the title of the plaintiff In the alternative he contended that he was a tenant and that in any case he was a kudikidappukaran. By the order under challenge the learned Munsiff referred the question of kudikidappu to the Land Tribunal under S.125 of the Kerala Land Reforms Act.
2. Counsel for the revision petitioner submits that the learned Munsiff has not taken into account the pleadings in Para.4 of the written statement where he categorically questioned the title of the plaintiff. It is submitted that the court should have determined the question of title before a reference was made under S.125. He further submits that in any view of the matter the reference should have been in regard to both tenancy and kudikidappu.
3. When the defendant questions the title of the plaintiff, and in the alternative raises contentions regarding tenancy or kudikidappu, it is necessary that, before a reference under S 125 is made, the question of title is first determined. The question of tenancy or kudikidappu can arise only if it is found that the plaintiff is a landlord. If it is on the other hand found that the plaintiff has no title to the land, the question of tenancy or kudikidappu in relation to the plaintiff does not arise at all. The learned Munsiff, it would appear from the order, lost sight of the fact that the question of the plaintiff's title was specifically raised in the written statement. In my view the learned Munsiff ought to have first determined that question. It is only on finding that the plaintiff has title to the land, will the question of reference under S.125 arise. The order under challenge is set aside, and the Civil Revision Petition is accordingly allowed. The parties are directed to bear their respective costs.
