1. Plaintiffs are the appellants. Suit was one for declaration of plaintiffs’ right of easement by prescription to use plaint ‘B’ and ‘C’ schedule properties, forming part of ‘A’ schedule, and for prohibitory injunction restraining the defendants from obstructing their enjoyment over ‘B’ and ‘C’ schedule properties. Suit claims were resisted by the defendants, the 1st defendant separately, and the rest, defendants 2 to 4 jointly, filing written statements, with the latter among them setting forth a counter claim for mandatory and prohibitory injunction against the plaintiffs over portions of plaint ‘A’ schedule property scheduling them separately as ‘D’ schedule 1 and 2 and ‘E’ schedule. The trial court partly decreed the plaint claim declaring the right of the plaintiffs to use ‘C’ schedule pathway and also granted an injunction restraining the defendants from obstructing such use. Counter claims raised by defendants 2 to 4 were also partly decreed (i) allowing demarcation of the counter claim scheduled properties in ‘A’ schedule from the portion of the property occupied by the plaintiffs, in accordance with and as determined under Ext.C2(a) plan prepared by the advocate commissioner.
(ii) directing plaintiffs to remove the structures in the counter claim ‘E’ schedule property.
(iii) allowing the above defendants to recover the site of the ‘E’ schedule property from the plaintiffs; and
(iv) restraining the plaintiffs by prohibitory injunction from entering into or exercising any act in counter claim schedule properties.
Plaintiffs challenged the decree to the extent aggrieved by the reliefs sought for in the suit were declined, and also over the allowing of the counter claims of the defendants 2 to 4, filing an appeal. The lower appellate court confirmed the decree of the trial court and dismissed such appeal. As against the concurrent decisions rendered by the two courts below, the plaintiffs have preferred this second appeal.
2. Plaint ‘A’ schedule property having an extent of 19.5 cents in Sy.No.1016/2 in Cheranelloor village, admittedly, belonged to the 1st defendant, namely, Archdiocese of Verapoly. Predecessor of the original plaintiffs, their father, namely, Rocky Peter was a kudikidappukaran under the 1st defendant. Putting up a homestead in ‘A’ schedule and in occupation thereof, he had improved the entire ‘A’ schedule, and after his death, the plaintiffs continued in possession of the property with the rights of kudikidappukaran, is their case. Admittedly, the present proceeding is the second round of litigation between the parties over the very same property, ‘A’ schedule described in the plaint. The 1st defendant had executed sale deeds in favour of defendants 2 to 4 over separate portions of plaint ‘A’ schedule excluding and leaving apart three cents in such property towards the kudikidappu of the plaintiffs. Plaintiffs instituted a suit as O.S.No.14 of 1996 before the 1st Additional Sub Court, Ernakulam, in which, asserting of lawful possession over the entire ‘A’ schedule property, three cents enjoyed as kudikidappu and the rest under an agreement of sale entered with the 1st defendant, a decree of injunction against the defendants, who are the present defendants as well, was applied for impeaching the sale deeds executed by the 1st defendant in favour of defendants 2 to 4. That suit was dismissed and Ext.B1 is a copy of the judgment. Though the plaintiffs challenged the dismissal of the suit before the superior forums, it was of no avail. Withdrawing the Special Leave Petition preferred against the dismissal of the second appeal by this Court confirming the dismissal of the suit, plaintiffs had moved a review petition; and that too, was dismissed, however, with observations safeguarding the rights of the plaintiff’s kudikidappu under their occupation in a portion of ‘A’ schedule.
3. Pursuant to the dismissal of the review petition, plaintiffs instituted the present suit for declaring their right to amenities attached to kudikidappu, over plaint ‘B’ schedule – some structures adjoining to the kudikidappu building, namely, a fuel cum lumber shed, terraced bathroom cum closet, septic tank and a well, and, easement by prescription attached to kudikidappu over ‘C’ schedule, described as a pathway having a width of 8 links and lengh of 11.45 meters passing through ‘A’ schedule property from the road to the building occupied by them. Declaration of the rights of kudikidappukaran over the amenities attached and easement by prescription in ‘B’ and ‘C’ schedule properties and perpetual prohibitory injunction against the defendants from obstructing their enjoyment over the same, was applied for. Suit being decreed only in part with respect to use of ‘C’ schedule pathway, that alone, and dismissed on other claims canvassed, and the counter claims raised by the contesting defendants partly decreed, and, with such decision of the trial court approved by the first appellate court as well dismissing the appeal, feeling aggrieved, the plaintiffs have come up with this second appeal.
4. Formulating the following substantial question of law, notice was ordered to the respondents.
Whether courts below were justified in restricting the kudikidappu right over 3 cents alone without deciding the question whether the property is situated originally in Cheranelloor Panchayat and was included in Cochin Corporation only later and the extent of kudikidappu to be purchased in Panchayat is not 3 cents.
Later, after appearance of the respondents, and hearing both sides, as it appeared that the entertainability of the suit and also the counter claim raised thereunder have to be adjudged with reference to the jurisdiction of the civil court to try and decide the issues canvassed for, the following substantial question of law was also formulated for hearing:
Whether the suit filed by the plaintiffs as framed, and also the reliefs canvassed thereunder, is maintainable in view of the bar under Section 125 of the Kerala Land Reforms Act, which mandate of an adjudication of any question relating to a claim of kudikidappukaran under Section 79A of the above Act by the authority named under that Act, and as such, is the decree passed in favour of the plaintiffs sustainable? In case the suit, if for any reason, is found to be not maintainable under law, whether the counter claim raised by the defendants in the suit could have been entertained and decree be passed in their favour, as was done by the courts below?
5. The main thrust of challenge against the concurrent decision of the courts below negativing the main reliefs canvassed in the suit and partly allowing of the counter claims of the contesting defendants, advanced by the learned counsel for the plaintiffs is based on the inherent lack of jurisdiction of the courts below to enter a decision on the disputed questions involved in the case without making a reference to the Land Tribunal to determine and demarcate the undisputed kudikidappu of the plaintiffs over a portion of plaint ‘A’ schedule property. Adverting to the materials collected and produced before this Court pursuant to orders issued as to when the panchayat area comprising the suit property, ‘A’ schedule, situate in Sy.No.1016/2 in Cheranelloor village had been included as part of the Municipal Corporation of Cochin, the learned counsel for the plaintiffs relying on Section 80A(3) of the Kerala Land Reforms Act, for short the ‘Act’, and also the judicial pronouncement rendered by this Court in Mary Yohannan v. Sreekumaran Nair (1991 (2) KLT 751 (FB) contended that the plaintiffs are legally entitled to have ten cents out of ‘A’ schedule as their kudikidappu holding and the decisions concurrently rendered by both the courts below as if they had only three cents of land was totally erroneous, fallacious and unsustainable under law. The disputed questions canvassed in the suit and counter claim relating to the kudikidappu right and amenities attached thereto, claimed by plaintiffs, and mandatory injunction applied by the defendants with recovery of site of the structures on demolition, warranted raising issue over the kudikidappu claim of the plaintiffs and its reference to the Land Tribunal, and the decision rendered without making such reference is void, is the further challenge canvassed by the counsel.
6. Per contra, the learned counsel appearing for defendants 2 to 4 inviting attention to the long drawn out previous litigation between the parties and the ultimate decision rendered thereunder, which has become final and conclusive, contended that the challenges raised in the appeal over the jurisdiction of the civil court in deciding the disputed issues projected in the case without a reference to the Land Tribunal are totally devoid of any merit, and further, it is not open to the plaintiffs to set up a case that they have ten cents of kudikidappu in ‘A’ schedule property when the challenge against the sale deeds taken in ‘A’ schedule property excluding 3 cents of kudikidappu of the plaintiffs predecessor, by the contesting defendants from the 1st defendant had been negative in the previous suit. The decision rendered in the suit concurrently by the two courts below does not suffer from any infirmity, and in fact, the plaintiffs, after being worsted in the previous proceedings had instituted the present suit only to rake up the disputes once again, conclusively decided and which has become insulted with finality, to obstruct and prevent the contesting defendants from enjoying the properties obtained by them under their sale deeds, is the submission of the counsel. Counter claims raised by the defendants had been partly decreed by the courts below, granting injunction, both prohibitory and mandatory, and recovery of possession of the site where structures are unauthorizedly put up after demolishing them. No reference to the Land Tribunal regarding the claim of kudikidappu over a portion of the plaintiffs in ‘A’ schedule, only three cents, which is not only not disputed but admitted to by the defendants, arise for consideration in the suit, submits the counsel. That being the position, according to the learned counsel for the defendants, the appeal does not involve any substantial question of law for consideration by this Court, and the decision concurrently entered by both the courts below in partly decreeing the suit and granting the counter claim also in part deserves only to be confirmed dismissing the appeal.
7. At the outset, it has to be stated, the present suit, at the instance of the appellants, with the reliefs canvassed for, was nothing but an ingenious attempt to subvert the conclusive decision rendered in the previous round of litigation between the parties and, thus, to cling on to their occupation over more area of land in the plaint schedule far in excess of their entitlement to the limited portion of land that could be claimed by them as successors in interest of a kudikidappukaran. In the previous litigation between the parties, in respect of the very same property described in the plaint as ‘A’ schedule, which had been fought up to the Apex court, over the rights of the parties, conclusive findings are rendered, which have become final, and they are not open to further challenge by way of a suit or other proceedings. That suit was one for injunction. Setting forth an agreement of sale in respect of the remaining portion of ‘A’ schedule excluding the three cents in occupation as kudikidappu and impeaching sale deeds taken by defendants 2 to 4 from the 1st defendant, the plaintiffs applied for a decree of injunction against them. The case of the plaintiffs was that their father, as a kudikidappukaran, occupied three cents, and after his death his wife and also plaintiffs, his children, continuing in occupation of kudikidappu entered into an agreement with the 1st defendant for sale of the remaining portion of ‘A’ schedule paying Rs.10,000/- as part of the sale price fixed. Ignoring such agreement, the 1st defendant executed sale deeds, conveying portions of ‘A’ schedule property to defendants 2 to 4 herein was the basis of the suit for injunction in which sale deeds executed in favour of such defendants were impeached. The trial court, holding that the plaintiffs can claim only three cents of property and their claim of possession over the rest of the property was unfounded, dismissed the suit. Challenge by way of appeal and second appeal was turned down. However, while dismissing the second appeal, this Court had directed the 1st defendant to return Rs.10,000/- collected as advance on the sale price to the plaintiffs though legally they were not entitled to for such reimbursement. Ext.B4 is the judgment rendered by this Court as aforesaid in the second appeal preferred in the previous suit filed by the plaintiffs. The appellants had challenged Ext.B4 judgment before the Apex Court, but leave was declined with liberty to move a review petition. Ext.B2 is the order, by which, the Apex Court had acceded to the request made by the present plaintiffs to withdraw the petition for special leave to appeal without prejudice to their right or remedy available to them. After Ext.B2 order, the plaintiffs preferred a review petition against Ext.B4 judgment rendered by this Court in their appeal confirming the dismissal of the suit by the trial court with the direction to the 1st defendant to pay Rs.10,000/- to them, as indicated above. Ext.B3 is the order passed in such review petition. While prosecuting such review petition, as seen from Ext.B3 order, challenge was limited for review of the decree of dismissal declining the injunction applied for and it was made clear that as against the challenge negative relief for cancellation of the sale deeds in favour of defendants 2 to 4, no review was sought for on any ground. After considering the review petition on its merit, this Court dismissed it making it clear that it will not affect the right of the petitioners/plaintiffs herein to occupy the building with the rights available to a kudikidappukaran. That review petition was dismissed as aforesaid on 14.02.2004, and, thereafter, the present suit has been instituted in respect of the very same property covered by the previous litigation within a span of one year.
8. Excluding the three cents in ‘A’ schedule, leaving it as the kudikidappu enjoyed by the predecessor of the plaintiffs, which continued with them, the 1st defendant had executed sale deeds over the rest of the properties covered by ‘A’ schedule in favour of defendants 2 to 4, and such sale deeds were challenged in the previous suit seeking cancellation of the deeds, contending that over the property excluding the kudikidappu in ‘A’ schedule, they have an agreement of sale with the 1st defendant and they continued in possession of those portions of property in part performance of such agreement. Whatever case advanced by them in that regard had been negative, and the cancellation of the sale deeds over portions of ‘A’ schedule property to the defendants 2 to 4 applied for was also declined. This Court, while turning down the second appeal challenging the dismissal of their suit under Ext.B4 judgment, directed the 1st defendant to pay Rs.10,000/- by way of concession though the plaintiffs were found not entitled to such reimbursement of the sum collected under the agreement of sale. There is no dispute that the amount deposited thereof pursuant to the direction in Ext.B4 judgment of this court had also been collected by the plaintiffs. The decision rendered in the previous suit, which has become final and conclusive, would interdict the parties thereto from re-agitating any of the issues dealt with in such suit as it is barred by res judicata. The case advanced by the plaintiffs in the present suit with respect to their entitlement for having a larger extent, ten cents of kudikidappu on the premise that formerly ‘A’ schedule property was situated in a Panchayat area can never be gone into by the court for other reasons as well. Challenge against the sale deeds taken in favour of defendants 2 to 4, which covered portions of ‘A’ schedule, excluding three cents recognized as kudikidappu holding of the plaintiffs, had been negatived in the previous suit and it cannot be impeached thereafter on any ground whatsoever at the instance of the plaintiffs. Further more, the question what is the extent of the kudikidapu holding, in respect of which purchase certificate could be obtained by a kudikidappukaran is within the province of the Tribunal covered by the Act and not a matter that could be adjudicated upon by the civil court. Plaintiffs have right of easement over other portions of ‘A’ schedule as part of his kudikidappu as enjoined under Section 79A of the Act was the further case that was set up in the present suit to seek the discretionary relief of injunction against the defendants. No doubt, that is also a matter which has to be adjudicated upon by the Land Tribunal proved a claim is set up on the basis of kudikidappu right over a holding. Without doing so, after being worsted in the previous suit the plaintiffs filed the present suit raising claims as aforesaid, evidently to keep the dispute canvassed in the previous suit alive, though the claims made by them excluding three cents earmarked as kudikidappu had been conclusively negative by the decision in the previous suit. There is no merit in the argument canvassed by the learned counsel for the appellants that since the claims made in the suit warranted adjudication of the kudikidappu right of the plaintiffs, whatever be the extent of land that could be recognized as such and also the right of easement attached thereto, a reference, after framing an issue thereof, for entering a finding by the Land Tribunal was called for, and since that has not been done, the dismissal of the suit is bad and one without jurisdiction. In the given facts of the case, more particularly, having regard to the conclusive decision entered in the previous litigation, the suit was not maintainable. The reliefs canvassed in the suit with respect to the claim of kudikidappu and decree of injunction on the basis of the right of easement attached to kudikidappu are all matters to be dealt with by the Tribunal under the Act in accordance with the statutory provisions thereunder and, when the suit was confined to such claim, that alone, it was not maintainable as the civil court cannot adjudicate such claims. It is only in a case where an issue correlated with other issues arising for determination in the civil suit call for a reference by the authority constituted under the Act, a reference can be made to such authority or Tribunal and not in a case where all the questions covered by the suit can be determined only by the Tribunal covered by the Statute.
9. I do not find any merit in the submissions made by the learned counsel for the appellants that on the allegations set forth in the plaint and the reliefs canvassed thereunder an issue ought to have been raised by the trial court as to the extent of land over which the plaintiffs could claim kudikidappu right in ‘A’ schedule and also the claim of amenities attached to such kudikidappu in ‘B’ and ‘C’ schedule properties, and then of making a reference to the Land Tribunal for decision on such issues. On two courts, submissions made as above is unworthy of any value. Where the suit claim/claims as a whole and exclusively fall within the jurisdiction of Tribunal/Board/officer or Government as under the provisions of the Act, it is a case where the civil court has no jurisdiction for determination of the claim though it has jurisdiction to entertain a suit involving such civil dispute as cognizable under Section 9 of the Code of Civil Procedure, for short, the ‘Code’. If only there are other issues determinable by the civil court in the suit coupled with any question which calls for determination of the right of a tenant or kudikidappukaran, then alone, the question of reference to the Tribunal as envisaged under Section 125(3) of the Act would arise for consideration. Where the plaintiffs in the suit seek for determination of the extent of land available to them as kudikidappu and also their entitlement to the amenities attached thereto, such claims, no doubt, are exclusively falling with the jurisdiction of the Land Tribunal for determination. Plaintiffs have also sought for an injunction against the defendants in respect of the amenities claimed as attached to their kudikidappu does not empower the civil court to raise issues over kudikidappu and also the amenities attached and also making reference, as the Land Tribunal is also competent to pass orders of injunction relating to kudikidappu holdings. Over and above, the statutory interdiction placed on the Civil Court in determining the issues in the suit on merits as under the provisions of the Act, it is also to be taken note of in view of the decision rendered in Ext.B1 suit, which has become final and conclusive, the plaintiffs are stopped from setting forth kudikidappu right over more than three cents of land in ‘A’ schedule. I say so since in the previous suit there was challenge against the transfer deeds executed in favour of the defendants over portions of ‘A’ schedule and of seeking cancellation of such deeds, over and above the claim for injunction on the basis of an agreement of sale by the 1st defendant. The admitted case of the plaintiffs was that excluding the three cents of land, over which, their predecessor had kudikidappu right there was agreement of sale over the rest of ‘A’ schedule property and on that basis, they impeached the sale deeds executed by the 1st defendant in favour of the other defendants seeking cancellation of such deeds. Excluding the thee cents of kudikidappu in ‘A’ schedule over the rest of the property in ‘A’ schedule, the 1st defendant continued to have saleable interest to divest his title without any encumbrance and the agreement of sale entered thereof has to be enforced, cancelling the sale deeds executed in favour of the defendants 2 to 4, was the case projected by the plaintiffs for injunction in the previous suit. When that be so and in the previous suit after adjudication it has been conclusively determined that the sale deeds executed in favour of the defendants 2 to 4 by the 1st defendant over portions of ‘A’ schedule excluding the three cents of kudikidappu are not liable to be cancelled and the claim for injunction canvassed in such suit was not allowable, it is no longer open for the plaintiffs to project a new case totally conflicting with the conclusive decision rendered in the previous suit between the parties, that they have got kudikidappu right over a large extent in ‘A’ schedule over and above the three cents of land, which was unequivocally and indisputably admitted in the previous case. Further more, it is also to be noticed that after dismissal of the review petition against the judgment rendered in the second appeal in the previous suit, that too, after withdrawing the Special Leave Petition preferred against the judgment rendered in second appeal, it is admitted, the indulgence shown by this Court ordering for refund of the sum of Rs.10,000/-, which has been collected on agreement of sale by the 1st defendant, on deposit of such sum by that respondent, had also been collected by the plaintiffs.
10. The trial court, without looking into any of the above aspects, granted a decree in part declaring the right of the plaintiffs to use ‘C’ schedule pathway with a decree of injunction against the defendants from obstructing the enjoyment of ‘C’ schedule pathway by the plaintiffs. In appeal, such decree granted in favour of the plaintiffs has been affirmed by the learned District Judge. The decree so granted in favour of the plaintiffs is unsustainable under law as it has been passed overlooking the statutory interdictions covered by the provisions of the Act. When such be the case, I have no doubt that the exercise of the powers of this Court under Order XLI Rule 33 of the Code has to be restored to undo the illegality in passing such decree violating the statutory interdictions under the Act. Order XLI Rule 33 of the Code provides thus:
“The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection 1(and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):
(Proviso and illustration omitted as not required.)
In Giani Ram and others v. Ramjilal and others (AIR 1969 SC 1144), the Apex Court has held that the expression ‘which ought to have been passed’ in Order XLI Rule 33 means “what ought in law to have been passed.” Where the appellate court finds that any decree which ought to in law have been passed was in fact was not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require. Where it is seen that the decree granted in favour of the plaintiffs by the courts below as indicated above is in flagrant violation of statutory interdiction as the jurisdiction to decide any question connected with kudikidappu and the amenities thereto are exclusively vested with the Land Tribunal as under the Act such decree is liable to be set aside. The suit of the plaintiffs, in which, claims exclusively determinable by the Land Tribunal alone was canvassed for before the civil court warranted only a dismissal but overlooking that both the courts below usurping the jurisdiction of the Land Tribunal has passed a decree, which is per se illegal.
11. Defendants 2 to 4, who filed a joint written statement resisting the suit claims on various grounds, have also set up counter claims for decree of injunction, both prohibitory and mandatory. As against the plaint schedule property covered by the respective sale deeds in their favour, these defendants sought for a decree of perpetual prohibitory injunction against the plaintiffs. Alleging that a portion of their property had been trespassed upon and structures put up therein, scheduling such portion as ‘C’ schedule in the written statement, these defendants sought for a decree of mandatory injunction directing the plaintiffs to dismantle such structures in ‘A’ schedule and for recovery of the site thereof. These defendants had contended that plaintiffs are entitled to only three cents as the kudikidappu enjoyed by their father Rocky in ‘A’ schedule and they cannot claim right over any other portion in that property. Identification of the three cents enjoyed by the plaintiffs as kudikidappu and also the other schedules described in their written statement with particulars of the structures put up in ‘A’ schedule was applied for by these defendants through an Advocate commissioner, and the report and plan collected thereby through the Advocate Commissioner was acted upon by the court below to grant a decree as sought for by the defendants in their counter claims holding that the plaintiffs have right over only a portion of three cents identified by the Advocate Commissioner in Ext.C2(a) plan prepared with the assistance of a surveyor, and they cannot claim any right over the rest of ‘A’ schedule. On that basis, the injunction, both prohibitory and mandatory, applied for by the defendants were granted directing the plaintiffs to demolish the structures put up in ‘e’ schedule determined by the Advocate commissioner as constructed encroaching upon portions in ‘A’ schedule other than the three cents of land with structures, which alone could be claimed by them as kudikidappu.
12. An interesting question, perhaps, a question of moment, emerges for consideration with respect to the decree granted in favour of the defendants upholding their counter claim after fixing and identifying the three cents of kudikidappu in ‘A’ schedule and the properties covered by the sale deed taken by the defendants 2 to 4 from the 1st defendant on the basis of a report and plan prepared by the advocate commissioner. Suit claims canvassed by the plaintiffs, all of which are exclusively triable by the Land Tribunal, it has already been found, could not have been gone into by the civil court, but that, however, does not mean that the suit involving civil disputes presented before the civil court, from inception, is barred before such court. What Section 125(1) of the Act interdicts is only settling, deciding or dealing with any question or determination of any matter, which is by or under that Act, is to be settled, decided or dealt with by any authority named or the Government or an officer of the Government. That being so, the bar is not against entertaining of the suit but of settling, deciding or dealing with any question arising under the Act, which, by the provisions thereunder, required to be settled by the authority named thereunder. So the fact that the suit filed by the plaintiffs has been found to be not maintainable does not in any way impinge or affect the counter claim raised by the defendants in such suit, which, if entertainable, required to be adjudicated upon or decided as a cross suit as envisaged under Order 8 Rule 6-A of the Code. Suit of the plaintiffs is liable to be dismissed as not maintainable will not therefore in any way affect the counter claim raised of the decree passed thereunder. In the context, Rule 6-D of Order VIII of the Code is relevant, which reads thus:
“If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.”
The counter claim in fact has to be treated as a plaint laid in the cross suit and the court has to pronounce a final judgment on the merits of such claim of the defendant. So much so, the decree granted in favour of defendants 2 to 4 upholding their counter claim is no way affected by the conclusion formed that the suit of the plaintiffs is not maintainable and liable to be dismissed. However, the decree granted identifying and fixing the kudikidappu of three cents of the plaintiffs by the civil court while demarcating the properties of defendants 2 to 4 covered by the sale deeds was not proper and correct as identification of the kudikidappu and its location is something which can be done only by the Land Tribunal and not by the Civil Court. However, so far as the identification and demarcation of the properties of defendants 2 to 4 as covered by the sale deeds, even if it has got common boundarites with a kudikidappu holding jurisdiction of the civil court is still there. Plaintiffs in the suit have claimed extension of kudikidappu over the properties of the defendants 2 to 4 as covered under the sale deeds, of course, would have some significance provided that an issue thereof was required to be raised for adjudication of the counter claim for reference to the Land Tribunal to have its determination. But in view of the decision rendered in the previous suit I have already pointed out that the plaintiffs are stopped from setting forth any claim over any portion of the property of the defendants 2 to 4 as part of their kudikidappu holding, and as such, no question of raising an issue thereof for reference to the Land Tribunal arose for consideration in the present suit. So much so, the identification of the property covered by the sale deeds of the defendants 2 to 4 for the purpose of the adjudication of the counter claim of those defendants and the decree of mandatory injunction granted to them on that basis directing the plaintiffs to remove the structures in their properties is sustainable on the proved facts and materials tendered in the case. In Ext.C2(a) plan prepared by the commissioner, which is based for granting the decree as aforesaid to the defendants, three cents of kudikidappu of the plaintiffs in ‘A’ schedule has been identified, as such, cannot be given much significance and it has to be held that that was the extent of land remaining in ‘A’ schedule after identification and demarcation of the sale deeds in favour of defendants 2 to 4. So far as the properties covered by the sale deeds of defendants 2 to 4, they have established their entitlement for removal of the structures situated therein by a decree of mandatory injunction and recovery of the site after demolition of the structures therein, and the decree so granted in their favour is not liable to be disturbed. In short, the challenges against the decrees granted in favour of the defendants 2 to 4 by the plaintiffs in the appeal are devoid of merit, and only to be turned down.
13. In the result, vacating and setting aside the decree granted in favour of the appellants/plaintiffs, it is ordered that the suit O.S.No.69 of 2003 shall stand dismissed. Decree granted in favour of the respondents 2 to 4/defendants 2 to 4 upholding their counter claims in part is upheld and affirmed.
14. The dismissal of the suit, it is made clear, will not affect the right of the plaintiffs over the kudikidappu holding and they are entitled to claim if any available as under Section 79A of the Act in seeking such reliefs before the competent forum as under the Act.
Appeal is dismissed with order dismissing the suit of the plaintiffs, directing both sides to suffer their costs.