Judgment :- The defendant in a suit for recovery of possession of the plaint B schedule building and for declaration of title and possession over the plaint A schedule property and for a permanent injunction restraining him from interfering with the possession of the plaintiff over plaint A schedule property is the appellant in this Second Appeal. The suit was filed against the defendant by his younger brother. The younger brother was employed in Bombay and in the Gulf countries and he took an assignment of the plaint A schedule property on 27-6-1977 under Ext. Al. He put up a building in the property. That building is shown as B Schedule to the plaint. While the plaintiff was away on employment his parents a1ongwith the defendant who appears to be the eldest were residing in the building and looking after the property. After the plaintiff came back dispute appears to have arisen between the parties and that led to the suit giving rise to this Second Appeal. 2. Originally the plaintiff sued only for a declaration of his title and possession and for a permanent injunction restraining the defendant from interfering with his possession of the entire suit property. In answer to the said suit the defendant set up a case that the plaint schedule property was purchased in the name of the plaintiff by the parents by expending their own money and that the building in the property was put up by the parents with their money with the result that the plaintiff had neither title nor possession over the plaint schedule properties. Subsequently the plaintiff amended the suit by adding a prayer for recovery of the building from the defendant scheduling the building as plaint B Schedule. In answer thereto the defendant contended that the plaintiff has no title, that the title if any of the plaintiff was barred by adverse possession, that the mother and the defendant were kudikidappukars in respect of the building and hence they could not be evicted. The defendant reiterated the contention that the building was constructed by the father and the mother with their own funds. The trial court among oilier issues raised issue No. 7 as to whether the defendant has kudikidappu right over B schedule building. The defendant reiterated the contention that the building was constructed by the father and the mother with their own funds. The trial court among oilier issues raised issue No. 7 as to whether the defendant has kudikidappu right over B schedule building. Alter deciding the issue on title, instead of referring issue No. 7 to the Land Tribunal for decision as laid down in Chacko Kochu v. Abraham (1977 KLT 8.68) the trial court purported to relegate issue No. 7 to the execution stage saying that the issue regarding kudikidappu arises at the time of actual recovery of possession. Finding that the plaintiff has title and possession over the plaint schedule property the trial court granted a decree to the plaintiff declaring plaintiffs title and possession over plaint A schedule property and restraining the defendant by a perpetual injunction from committing waste, cutting down trees and from destroying the boundaries of the plaint A schedule property. It was also held that the plaintiff was entitled to recover possession of B schedule building from the defendant through court subject to the final decision on the claim of kudikidappu raised by the defendant with regard to the B schedule building. The defendant went up in appeal. The plaintiff filed a Memorandum of Cross Objections contending that the finding on issue No. 7 entered by the trial court was wrong and that no question of kudikidappu arose in this case on the pleadings and that the plaintiff ought to have been given an unconditional decree. The lower appellate court on a re-appraisal of the relevant evidence came to the conclusion that the plaintiff is entitled to have his title and possession declared over the plaint A schedule property but that the trial court was right in relegating the issue of kudikidappu to a subsequent stage. As a consequence the lower appellate court dismissed both the appeal and the Memorandum of Cross Objections. 3, This Second Appeal is filed by the defendant raising the question as to whether the courts below were right law in relegating issue No. 7 for decision to a subsequent stage and granting a decree to the plaintiff on the scheme of S.125 of the Kerala Land Reforms Act. 3, This Second Appeal is filed by the defendant raising the question as to whether the courts below were right law in relegating issue No. 7 for decision to a subsequent stage and granting a decree to the plaintiff on the scheme of S.125 of the Kerala Land Reforms Act. The plaintiff has filed a Memorandum of Cross Objections contending that no question within the meaning of S.125(3) of the Kerala Land Reforms Act arises at all in this case and that an unconditional decree for recovery of possession of the plaint B schedule building ought to have been granted to the plaintiff. 4. The plaintiff and the defendant, as noticed, are brothers. The courts below have rightly found that the plaint schedule property was purchased by the plaintiff under Ext. Al. The case of the plaintiff is that he has constructed the plaint B Schedule building. The case of the defendant is that plaint schedule property was purchased by the parents of the defendant with their money. His case regarding plaint B schedule building is that the said building was constructed with the money of the parents. The defendant has no case that he has constructed the building with his own funds. Admittedly the plaintiff was away employed. It is also seen that the plaintiff had at the time of the marriage of the sister of the parties gifted to her an extent of 13 cents of property from out of the total extent purchased by him under Ext. Al. On the materials mere is no difficulty in holding that the building was constructed by the plaintiff in the property after he purchased the same from one Madhavan Nair under ExtAl. Even if the defendant had looked after the construction or the parents and the defendant together had helped the plaintiff in constructing the building, the same cannot clothe them with any title or right over the building. On the facts of this case it is clear that the parents and the defendant were residing in the building only in their capacity of the parents and the brother of the plaintiff, the owner of the building. It is also clear that the defendant was not in any independent occupation of the building in his own right, but was merely residing with his parents. It is also clear that the defendant was not in any independent occupation of the building in his own right, but was merely residing with his parents. A scrutiny of the written statement would show that even the plea raised by him is to that effect. 5. It is true that on the scheme of S.125 of the Kerala Land Reforms Act when in a properly constituted suit in the civil court an issue as to whether a person is a tenant or a kudikidappukaran arises for decision, the same has to be referred to the Land Tribunal. It is only after such reference and after obtaining the finding of the Land Tribunal on that question that the civil court is in a position to proceed to dispose of the suit accepting that finding also. As observed by Dr.Justice Kochu Thommen (as he then was) in Chacko Kochu'.? case in acase where the title of the plaintiff is disputed by the defendant who alternatively raises a plea of tenancy as well, it is open to the civil court to decide the issue on title first and then to refer the question of tenancy to the Land Tribunal if it arises for decision on the basis of finding on title. Still a reference of the question of tenancy or claim of kudikidappu could not be decided by the trial court without following the mandate of S.125 of the Kerala Land Reforms Act. But as observed in the decision reported in Kesava Bhat v. Subraya Bhat (1979 KLT 766) the civil court has jurisdiction to consider whether the question of tenancy or kudikidappu arises for decision. In a recent decision in C.R.P.I875 of 1994 I have indicated that the obligation to refer the question of tenancy does not preclude the civil court from proceeding with the suit in all matters other than adjudicating on the question covered by S.125(3) of the Kerala Land Reforms Act. His Lordship Justice Thomas has also indicated in the decision reported in Ambu v. Vellachi (ILR 1994 (3) Ker. His Lordship Justice Thomas has also indicated in the decision reported in Ambu v. Vellachi (ILR 1994 (3) Ker. 460) that in view of the infrastructure available on the lack of it the court has a duty to ensure that a question covered by S.125(3) of the Kerala Land Reforms Act does in fact arises in a suit and a decision on that issue could not be avoided before referring the question to the Land Tribunal in terms of that Section. But all these do not mean that a court can decree a suit without deciding the question of tenancy or kudikidappu raised by a defendant (in case it does arises for decision) by relegating. such an issue to a later stage, presumably to the stage of execution. In this case there is a prayer for recovery of the plaint B schedule building. There is a claim by the defendant that his mother and he are kudikidappukars. The court ought to consider whether that issue arises in the case. If at all the issue did arise for decision the court had to refer that question to the concerned Land Tribunal in terms of S.125(3) of the Act. For granting recovery to the plaintiff one of the issues required to be decided is whether the defendant is a kudikidappukaran or not - assuming that the question arises for decision --. Therefore no decree could be passed by the court before deciding that issue, or by relegating that issue to the stage of execution. The analogy of Explanation IV to S.2(25) of the Kerala Land Reforms Act cannot be applied to a case for recovery of possession on the strength of title where a plea of tenancy or kudikidappu is raised. The question cannot be relegated - in case it arises - and a finding on that issue has to be entered before finally disposing of the suit. Here the courts below have purported to relegate that question to a later stage and have granted the plaintiff a decree for recovery of the building subject to that question being decided at a later stage. This procedure in my view is not warranted by anything contained in S.125 of the Kerala Land Reforms Act. Here the courts below have purported to relegate that question to a later stage and have granted the plaintiff a decree for recovery of the building subject to that question being decided at a later stage. This procedure in my view is not warranted by anything contained in S.125 of the Kerala Land Reforms Act. To that extent the contention of the learned counsel for the appellant-defendant that no decree could be granted in respect of the building without deciding the claim of kudikidappu raised by him is correct and to that extent the procedure adopted by the courts below is impermissible. 6. Now we come to the question whether on the pleadings in this case a question of kudikidappu does arise or not. This is exactly what is covered by the Memorandum of Cross objections filed by the plaintiff. According to learned counsel for the plaintiff a reading of the written statement and the additional written statement would show that the defendant has no case that he has constructed the building or that he has been permitted by the plaintiff to reside in the building. It is pointed out that the case of the defendant is that it was his parents (the parents of the plaintiff as well) who purchased the property in the name of the plaintiff and it was his parents who constructed the building with their own funds. The father is no more. The mother is not a party to the suit. In fact it is pointed out that the mother did make an application before the Land Tribunal as O. A.18 of 1994 and the same was dismissed by the Land Tribunal by order dt.24-6-1994. Anyway what is to be noted is that there is no case for the defendant that he had constructed the building. He had also no case that he had been permitted by the plaintiff to reside therein. At best his occupation was along with the parents of himself and the plaintiff. A person in occupation of a building on the basis of relationship with the head of the family cannot be said to be in independent occupation which is an essential requirement for qualifying him to claim a right of kudikidappu. At best his occupation was along with the parents of himself and the plaintiff. A person in occupation of a building on the basis of relationship with the head of the family cannot be said to be in independent occupation which is an essential requirement for qualifying him to claim a right of kudikidappu. As observed by Krishna Iyer, J. (as he then was) in Mariyam v. Xavier (1971 KLT 709 at 717): "The law would reduce itself to an absurdity if every man, woman and child in a but begins to sei up an independent kudikidappu right merely because the master of the household has taken permission to occupy and the others are inhabiting the house along with him". It is 'therefore clear that the defendant who had no independent occupation at any time or occupation in his own right cannot claim to be a kudikidappukaran. This view has been reiterated by this court in Perila Janardhanan v, Vellachi Chinna (1972 KLT 207) and in Balammal v. Vasanthakunmri (1984 KLT 137). Moreover the written statement shows that what the defendant in fact was saying was that his mother and himself were entitled to kudikidappu right presumably because according to the defendant it was his mother and father who had constructed the building in the property. Thus on a consideration of the pleadings in the case in the light of the surrounding circumstances it is clear that no question of kudikidappu arises for decision in this case. That the court has jurisdiction to consider whether the question does arise for decision is clear from Kesava Bhat's case referred to earlier and various other decisions which have followed that larger bench decision. In that view though therefore there is a technical defect in the procedure adopted by the courts below in leaving open the question of kudikidappu, in my view that a question of kudikidappu does not arises for decision in this case, no .interference is called for at the instance of the defendant-appellant in this case. Accepting the Memorandum of Cross Objections the finding of the courts below on issue No.7 requires to be set aside and I hold that no question of kudikidappu arises for decision in the present case at the instance of the defendant. Accepting the Memorandum of Cross Objections the finding of the courts below on issue No.7 requires to be set aside and I hold that no question of kudikidappu arises for decision in the present case at the instance of the defendant. If that be so the conditional decree for recovery of the plaint B schedule building granted by the courts below has to be modified. I therefore modify the judgments and decrees of the courts below and grant the plaintiff an unconditional decree for recovery of possession of the plaint B schedule property. There is no question of any further enquiry into the alleged claim of kudikidappu by the defendant in execution or otherwise. In the result the Second Appeal is dismissed and the Memorandum of Cross Objections is allowed by modifying the decree of the courts below by granting the plaintiff an absolute decree for recovery of possession of the plaint B schedule building in addition to the decree regarding (lie plaint A schedule already granted. Considering the nature of the relationship between the parties I direct them to bear their respective costs in this Second Appeal notwithstanding the unjust and un equitable claim sought to be raised by the defendant to defeat the rights of his younger brother.