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1973 DIGILAW 92 (KER)

DAMODARAN v. RAGHAVAN

1973-03-15

V.P.GOPALAN NAMBIYAR

body1973
Judgment :- 1. This writ petition is by a Kudikidappukaran against an order passed by the Land Tribunal, Anthikad, Trichur, in an application filed under S.75 (2) read with S.77 of the Land Reforms Act for shifting the Kudikidappu. The application was filed by the 1st respondent, Raghavan, for eviction of the Kudikidappukaran from the A schedule property which was described as belonging exclusively to Raghavan. The Kudikidappukaran was sought to be shifted to the 10 cents of the B Schedule which was offered as the alternate site and which was described as belonging in joint ownership to Raghavan. Some time after the petition for shifting was filed before the Tribunal, the 2nd respondent Jayamony, was brought on record as the 2nd petitioner before the Land Tribunal on the allegation that the B Schedule property belonged jointly to Raghavan and to Jayamony. Neither in the application for shifting nor in the application for impleading is to be found any averment that Jayamony who came on record as the 2nd petitioner had any right or interest in the A Schedule property. 2. The Tribunal found on issue No. I that the A Schedule property was required for the building purpose of the applicant, and on issue No. 2 that the B Schedule property satisfied the requirements of S.75 (2) of the Act, On Issue No. 3 it found that the respondents (the petitioner herein) are bound to shift from the Kudikidappu ana on Issue No. 4 dealing with the expenses reasonably required for the shifting, it found that the shifting charges of Rs. 700/- and Rs. 300/- towards the value of the but had to be paid to the respondent before it. The Tribunal directed applicant No.1 Raghavan to deposit the shifting charges and to transfer the ownership of the 10 cents of land to the respondents. The Kudikidappukaran, the respondent before the Tribunal, has filed this writ petition. 3. The finding regarding the bona fide requirement for shifting the Kudikidappu was attacked before me. But I think the same is not open to interference in these proceedings. The Kudikidappukaran, the respondent before the Tribunal, has filed this writ petition. 3. The finding regarding the bona fide requirement for shifting the Kudikidappu was attacked before me. But I think the same is not open to interference in these proceedings. The Tribunal found that Raghavan the 1st petitioner before it, was living with his elder brother in five cents and that his brother bad asked him to shift from the house where he was till then living; that there was no suitable site for construction for residential purpose, and that from the evidence of the Revenue Inspector's Report Ex. C-1, and the evidence adduced by the Tribunal, it was satisfied that the A Schedule property of an extent of 44 cents was required for the construction of a house and its convenient enjoyment and for appurtenances such as cattle shed etc. I see no ground for interference with this finding. 4. Counsel for the petitioner attacked the correctness of the findings that the alternate site in the B Schedule property offered satisfied the requirements of S.75 (2) of the Act. S.75 (2) of the Act allows a person in possession of the land on which there is a homestead or but referred to as landholder, in the occupation of a Kudikidappukaran, if he bona fide requires the land for building purpose, to require the Kudikidappukaran to shift to a new site belonging to him, subject to certain conditions. Then the section posits that the new site must "belong" to him. There seems to be little doubt that it must "belong" to the "landholder" referred to in the earlier part of S.75 (2), namely the person in possession of the land, on which there is a homestead. In this case, though the 1st petitioner before the Tribunal is Raghavan, counsel for the petitioner contended that the alternate site does not belong to Raghavan the landholder, but belongs to him jointly with the 2nd petitioner Jayamony, and therefore the requirement of the latter portion of S.75 (2) is not satisfied. On the other band, counsel for the respondent-landlord contended that the section does not require that the new site must belong exclusively to the land-holder, and that it is enough if it belongs jointly to him, along with one or more others. On the other band, counsel for the respondent-landlord contended that the section does not require that the new site must belong exclusively to the land-holder, and that it is enough if it belongs jointly to him, along with one or more others. It was contended by counsel for the respondent that so long as the other joint owners are also parties to the application for shifting and signified their assent to make available and to transfer the ownership of the alternate site to the Kudikidappukaran, the requirements of the section would be duly satisfied. I do not propose to express any opinion on the aspect raised in these contentions, but would leave the matter, in the first instance, to be dealt with by the Tribunal. Ground A of the petition has expressly alleged that this aspect of the case was presented before the Tribunal but was not dealt with or considered in its order Ex. P1. Assuming without deciding, that the contention urged by counsel for the respondent is well founded, and that a joint ownership of the alternate site will suffice, so long as all the joint owners have been made parties to the application and have signified their assent to the transfer of ownership thereof to the Kudikidappukaran, the difficulty here is that Ex. P-1 order does not satisfy even this. It directs the 1st petitioner, Raghavan, to pay the shifting charges and directs him alone to transfer the ownership of 10 cents of land to the respondent. This, certainly, cannot amount to a proper compliance with the provisions of S.75(2) of the Act. I therefore allow this writ petition, set aside Ex. P1 order, and remand the matter back to the Tribunal for the limited purpose of fresh disposal on issue No. 2, namely whether the 'B' Schedule property satisfies the requirements of S.75 (2) of Act I of 1964, as amended by the Amending Act of 1969. The Tribunal will dispose of the matter afresh in accordance with law and in the light of the observations contained in this judgment. Parties are at liberty to adduce such further evidence before the Tribunal, as they deem fit to adduce. No order as to costs.