Claims for 'kudikidappu' rights cannot be introduced decades after an alleged sale without consistent pleadings.

JUDGMENT

The original petition has been filed praying to set aside Exts.P10 and P14 orders and allow I.A.No.1 of 2020 and I.A.No.7 of 2020 in A.S.No.30 of 2014 before the 3^rd Additional District Judge, Thodupuzha. Petitioners filed O.S.No.87 of 2007 before the Munsiff Court, Thodupuzha for specific performance of a contract for sale of 6 cents of land to the predecessor of the petitioners, late Ibrahim. According to the petitioners, the properties belonged to late Mary Sebastian of Kuruvinakunnel House. Late Ibrahim was the driver of the Kuruvinakunnel family. The specific contention in Ext.P5 claim is that on 07.06.1989, the husband of the 1^st petitioner had given a sum of ₹6,001/- as advance towards a sale value of ₹60,000/- for 6 cents of land with a house therein to Smt.Mary Sebastian. The specific pleading is that the property was put in possession of late Ibrahim on that basis. Ext.P1 produced along with original petition is a receipt, which is stated to have been issued on receipt of a sum of ₹6,001/-. Exts.P2 and P3 are also receipts showing certain amounts of money having been paid to different persons. Ext.P4 is a letter which says that a letter was issued by St.Thomas Marthoma Church stating that they have no objection for drawing electric line to the house in which Ibrahim was residing, which belonged to Mary Sebastain. Going by the averments in the plaint, the predecessor of the petitioners came into possession only during June 1989.

2. The respondents filed written statement and also a counter claim seeking eviction. On 09.12.2013, the suit was dismissed and the counter claim was allowed. Petitioners preferred A.S.No.30/2014 before the Additional District Court, Thodupuzha. Six years after the filing of the first appeal, the petitioners filed I.A.No.1 of 2020 in A.S.No.30 of 2014 seeking to amend a replication filed in the suit by including a contention that the predecessor of the petitioners who died in 1993 was residing in a hut which had been constructed with less than ₹750/- and that he was entitled to” Kudikidappu” right for which the matter ought to be referred to the Land Tribunal. The respondents filed objection to I.A.No.1 of 2020 stating that the application is not maintainable. It is pointed out in the objections that the claim was made 31 years after the alleged sale agreement of 07.06.1989 and the suit itself was filed for specific performance after 18 years in 2007. It is further stated that the suit was dismissed twice and restored on file and it was thereafter that the suit was dismissed with cost and the counter claim was allowed. It is also pointed out that the petition itself was filed when the appeal came up for hearing. It is further contended that the amendment takes a totally contradictory stand disregarding the earlier case and that when the survey and commission report showed beyond doubt that the property never belonged to Mary Sebastian and was a property of Mathew Sebastian, a stand was taken in the chief affidavit that one-third share of Mathew Sebastian which is inherited by Mary Sebastian is liable to be sold along with two-third share of the others. Another stand taken in the chief affidavit of the plaintiffs under Section 60 of the Easements Act is to the effect that, licencees who have made permanent constructions are not liable to be evicted. It is pointed out that, it is thereafter that the new plea of “kudikidappu” is put forward. It is also stated in the objections that from the positive statements in the plaint and the evidence of PWs 1, 2 and 3, at the time of the so called agreement for sale, the predecessor of the petitioners was the owner of the two storied concrete building on the side of Thodupuzha Moolamattom Temple near the plaint schedule pro