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1966 DIGILAW 135 (KER)

Gopalan v. Chellamma

1966-06-20

M.MADHAVAN NAIR

body1966
Judgment :- 1. The controversy in this second appeal is of the construction of the definition of a kudikidappukaran in clause (25) of S.2 of Act I of 1964. 2. The facts are thus: The title deed to the plaint B schedule property stands in the name of the plaintiff. There is a building on the property which is described in plaint A schedule. The 1st defendant is a cousin of the plaintiff. The 2nd defendant is the son and the 3rd defendant daughter-in-law of the 1st defendant. Alleging that the building has been let by him to the 1st defendant, on a monthly rental of Rs. 4/-, the plaintiff instituted proceedings before the Rent Control Court for eviction of the defendants. The defendants denied lease and claimed title to the land and the building. Thereupon the plaintiff instituted O. S. No. 1408 of 1955 for declaration of his title to the land and building and for recovery of arrears of rent. The 1st defendant claimed the purchase in the name of the plaintiff to have been with her funds for her benefit and the building to have been put up by her. The purchase was found to enure to the plaintiff, the building to have been put up by the 1st defendant, and the lease arrangement set up by the plaintiff untrue. The plaintiff then instituted the present suit to compel the defendants to remove the building from his land, averring that it was put up without his consent. Defendants 1 and 2 claimed immunity of a kudikidappukaran under the Kerala Act XXX of 1958. The Munsiff held: "The defence case is that they are Kudikidappukars, since they have no other building to reside or land to erect a homestead. Plaintiff has not proved that defendants have any other property or building of their own. Plaintiff as P. W.1 says that A schedule building is worth only below Rs. 40/-. Even according to the plaintiff defendants are residing there from Karkadakom 1123 onwards. So according to explanation I to S.2 of Act 30 of 1958 defendants must be deemed to have constructed A schedule building with the consent of the plaintiff for their residence. In the circumstances I find that the defendants are Kudikidappukars as defined in Act I of 1957, as amended by Act 30 of 1958. So according to explanation I to S.2 of Act 30 of 1958 defendants must be deemed to have constructed A schedule building with the consent of the plaintiff for their residence. In the circumstances I find that the defendants are Kudikidappukars as defined in Act I of 1957, as amended by Act 30 of 1958. that they are not liable to be evicted and that hence A schedule building is not liable to be removed." On appeal, the Additional District Judge held: "The defendants have claimed the rights of Kudikidappukars in Para.18 of the written statement. They have definitely stated that they have no other building or land to erect a building for their residence. There is no evidence in this case to show that the defendants have any other building or land to erect a building. It is not disputed that the value of the building will be below Rs. 400/-. In such circumstances, it has to be held that the defendants are entitled to the rights of Kudikidappukars. So, they cannot be evicted from the building and the building cannot be demolished." The plaintiff has come up in second appeal. 3. The definition of a kudikidappukaran in the Act XXX of 1958 ran thus: "'Kudikidappukaran' means a person who has no homestead or land of his own to erect a homestead and (i) who has been permitted with or without an obligation to pay rent by an owner of land to have the use and occupation of a portion of the land in his possession for the purpose of erecting a homestead, or (ii) who is in occupation of a but constructed by a person owning and possessing the land in which the but is situated and who has been permitted by such person to occupy the but with or without an obligation to pay rent, but otherwise has no interest in the land; and 'Kudikidappu' means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto, and includes an ulkudi. Explanation I. Any person who was in occupation of a kudikidappu on the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause. Explanation II. Explanation I. Any person who was in occupation of a kudikidappu on the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause. Explanation II. For the purpose of this clause 'hut' means any dwelling house which has a value not exceeding four hundred rupees." The Munsiff appears to have assumed that as per Explanation I to the above definition persons who have been residing in a building worth below Rs. 400/- from a date anterior to the 11th day of April 1957, and have no "other property or building of their own" would be kudikidappukars irrespective of any consent on the part of the landlord concerned, and the Additional District Judge has affirmed it. 4. It is conceded at the bar that the defendants' claim has now to be decided in the light of the definition in the Land Reforms Act, I of 1964 hereinafter 'the Act' for short as directed in S.132 (1) of the Act. Clause (25) of S.2 of the Act (I of 1964), so far as is relevant here, reads thus: "'Kudikidappukaran' means a person who has neither a homestead nor any land, either as owner or as tenant in possession, on which he could erect a homestead and (i) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or (ii) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a but belonging to such person and situate in the said land, but otherwise has no interest in the land; and 'kudikidappu' means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto: Explanation II. Any person who was in occupation of a kudikidappu on the 11th day of April, 1957, and who continued to be in such occupation at the commencement of this Act, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause. Any person who was in occupation of a kudikidappu on the 11th day of April, 1957, and who continued to be in such occupation at the commencement of this Act, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause. It is obvious from the above definition that to be a kudikidappukaran under the Act, (i) the person should have neither a homestead nor any land, either as owner or as tenant in possession, on which he could erect a homestead; (ii) he should have been permitted (a) to have the use and occupation of a portion of the land for erecting a homestead, or (b) to occupy a but situate in the land; and (iii) he should have no other interest in the land. Explanation II appended to the definition enacts that the requisite permission shall be deemed, without proof, to exist when occupation of a "kudikidappu" on the 11th day of April 1957 and the continuance of such occupation till the commencement of the Act are proved. Kudikidappu, by its very definition in the same clause (quoted above), refers to the land and the homestead permitted to be erected or the but permitted to be occupied. In order to claim the benefit of Explanation II it has necessarily to be shown that the original occupation was of a kudikidappu. The effect of Explanation II is that a person, who has no land or homestead of his own and who was permitted to put up a homestead on a portion of the land in lawful possession of another or to occupy a but thereon and has been in occupation of such homestead or but from the 11th day of April 1957, to the date of commencement of the Act, will not lose the benefit of such permission even though it was subsequently withdrawn and even though he was ousted from the land after the commencement of the Act. Counsel for defendants contended that the fictional permission deemed under Explanation II would apply to the erection of a homestead as well, as has been held by the Munsiff. I am afraid, this contention is not warranted by the wording of the Explanation. It uses the expression "was in occupation ' when it refers to a past event, and says "shall be deemed to be in occupation... with permission". I am afraid, this contention is not warranted by the wording of the Explanation. It uses the expression "was in occupation ' when it refers to a past event, and says "shall be deemed to be in occupation... with permission". Obviously the fictional permission relates only to the later occupation on date of commencement of the Act and not to the old occupation had on the 11th day of April 1957. The Explanation refers to a'kudikidappu' which, by its very definition, implies necessity of a permission to erect a homestead or to occupy an existing hut. The permission required to constitute a kudikidappu is only to erect a homestead or to occupy an existing hut. Under the definition, the moment a homestead was erected with permission or a but was occupied with permission it constituted a kudikidappu, and no question of continuance of permission arises there. If the person "was in occupation of a kudikidappu on the 11th day of April 1957" here facts have to be established by proof without aid of any fiction and he continued to be in occupation of the kudikidappu, with or without permission, at the commencement of the Act such continued occupation will be deemed to be with permission without any proof. 5. It is pertinent to note here that sub-clause (i) of the definition refers to permission to have "the use and occupation" of a portion of the land while sub-clause (ii) refers to permission to "occupy" an existing hut. It follows that even if the expression "occupation" in Explanation II relates to occupation had on the 11th day of April 1957, it cannot relate to the "use and occupation" of a portion of the land anterior to that date. 6. It may be noted that with reference to the permission either to have the use and occupation of a portion of the land for erecting a homestead or to occupy a but already on the land the tense used in sub-clauses (i) and (ii) of the definition is the present-perfect "has been", which, as explained by me in Karunakaran Nair v. Ramakrishnan Nair (1966 KLT. 351), connotes a completed event continuing in operation. 351), connotes a completed event continuing in operation. In other words, to satisfy the definition, the permission given must be continuing in effect to the relevant time; and a permission once given and subsequently withdrawn or otherwise come to termination will not satisfy the expression in sub-clauses (i) and (ii) of the definition. Explanation II extends the effect of the permission had for occupation of a kudikidappu to the date of commencement of the Act when a statutory immunity from eviction is conceded. It is clear from the above that to be a kudikidappukaran either the erection of the homestead or the occupation of the but must commence with permission of the landlord. A treapasser who made forcible entry into the land of another and put up a homestead thereon, in the teeth of opposition by the landlord, even though he might have occupied the same before the 11th day of April 1957 and continued that occupation to the date of commencement of the Land Reforms Act, will not be within the definition of a kudikidappukaran. 7. In order therefore to adjudge the claim of the status of a kudikidappukaran advanced by the defendants it has to be found whether the building was erected by the 1st defendant on the land of the plaintiff with the latter's Consent. As no finding has been entered in this regard by the Courts below, (the plaint has denied it) the decree conceding the status of a kudikidappukaran to the defendants has to be discharged and the suit remitted for fresh disposal to the Court of trial. The costs in this second appeal, as well as that in the lower appellate Court, will be costs in the cause and are left to the Munsiff at the fresh disposal.