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1977 DIGILAW 15 (KER)

SANKARAN v. KUMARAN

1977-01-13

G.BALAGANGADHARAN NAIR, V.BALAKRISHNA ERADI

body1977
Judgment :- 1. This second appeal and the civil revision petition have arisen out of connected proceedings between the same parties and the questions involved in them being substantially the same they have been heard together at the request of both sides 2. The appellant in E. S. A. No. 45 of 1975 is the defendant in O. S. No. 240 of 1959 on the file of the Munsiff's Court, Trivandrum. That was a suit instituted by the respondent herein as plaintiff for eviction of the defendant -appellant from the plaint schedule building with arrears of rent on the allegation that the defendant was in occupation of the building as a tenant under the plaintiff. The defendant denied the rental arrangement and set up title in himself which he claimed to have acquired by adverse possession. The said plea put forward by the defendant was repelled by the trial court and a decree for eviction was passed in favour of the plaintiff on 9 81962. The defendant preferred an appeal before the District Court, Trivandrum as A. S. No, 670 of 1962 on the file of that court. That appeal was allowed by the District judge holding that the defendant had perfected title to the building by adverse possession. The plaintiff thereupon preferred a second appeal to this court S.A. No. 398 of 1964. By judgment dated 9th February, 1968 this court allowed that second appeal, set aside the decree and judgment of the District Court and restored the decree for eviction passed against the defendant by the trial court. 3. Thereafter the plaintiff-respondent-filed E.P. No. 410 of 1968 in the Munsiff's Court, Trivandrum praying for delivery of possession of the plaint schedule building in execution of the decree passed in his favour. The defendant judgment debtor-resisted that petition by contending that he is a kudikidappukaran entitled to the benefit of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), hereinafter referred to as the Act. Urging the said objection the defendant judgment debtor filed E.A. No 3558 of 1968 in the executing court praying that the execution petition should be dismissed on the ground that he is a kudikidappukaran. 4. Urging the said objection the defendant judgment debtor filed E.A. No 3558 of 1968 in the executing court praying that the execution petition should be dismissed on the ground that he is a kudikidappukaran. 4. The learned Munsiff held that since the decree for the eviction of the defendant had been passed by the High Court only on 9 21968, long after the coming into force of the Act, and since the plea put forward by the defendant throughout the course of the suit right up to its termination by the disposal of the second appeal by the High Court was that he was in possession of the building as full owner by virtue of his having allegedly acquired title by adverse possession it was not open to the defendant at the stage of execution to put forward the contention that he is a kudikidappukaran entitled to protection under the Act. In this view, the Munsiff overruled the objection raised by the defendant and ordered delivery of possession of the decree schedule building to be given to the decree holder. The defendant judgment debtor-took up the matter in appeal before the District Court, Trivandrum. Before the appellate court, reliance was placed on behalf of the defendant on Explanation IIA that was added in S.2 (25) of the Act by the Kerala Land Re-forms (Amendment) Act, 1972 (Act 17 of 1972) and it was contended that by virtue of the said Explanation notwithstanding the decree for eviction passed by the High Court in second appeal, the judgment debtor in the present case has to be deemed to be a kudikidappukaran in as much as be was in occupation of the building during the period form 16 81968 till 111970. This contention did not find favour with the learned District Judge and he upheld the finding of the executing court that having regard to the nature of the defence put forward by the defendant in the suit it was not open to the judgment debtor in the present case to put forward at the execution stage a plea that he is a kudikidappukaran and the appeal was dismissed by the learned District Judge. It is against the said decision of the lower appellate court that the defendant judgment debtor has come up to this court with this second appeal. 5. It is against the said decision of the lower appellate court that the defendant judgment debtor has come up to this court with this second appeal. 5. While the execution petition was pending before the Munsiff 's Court the defendant judgment debtor-filed an application before the Land Tribunal, Trivandrum as O.A. No. 787 of 1970 under S.80B of the Act contending that he is a kudikidappukaran in respect of the building in question and praying for purchase of the said kudikidappu occupied by him. The Land Tribunal by its order dated 28th October. 1972 dismissed that application holding that since the question raised therein was already sub judice before the civil court in the execution appeal which was then pending before the District Court, Trivandrum the application filed under S.80B of the Act was not maintainable. Against the said order passed by the Land Tribunal an appeal was filed by the defendant before the Appellate Authority (Land Reforms), Alleppey (hereinafter referred to as the Appellate Authority). The Appellate Authority by judgment dated 15th May, 1975 allowed that appeal and held that the defendant is entitled to kudikidappu right in respect of the building in question by virtue of Explanation IIA to S.2(25) of the Act. In the light of the said finding the Appellate Authority set aside the order of the Land Tribunal and remanded the case to the Land Tribunal with a direction to proceed further in the matter after fixing the compensation payable to the owner. It is against the said decision rendered by the Appellate Authority that the plaintiff-decree holder-who was the respondent in the proceedings under S.80B for purchase of kudikidappu has come up to this court by filing CRP. No 1762 of 1975 under S.103 of the Act. 6. The parties will be hereafter referred to on the basis of their ranking and array in the suit O. S. No 240 of 1959; the defendant judgment debtor who is the appellant in the second appeal and the respondent in the civil revision petition will hereafter be referred to as the defendant and the plaintiff-decree holder who is the respondent in the second appeal and the petitioner in the civil revision petition will be referred to as the plaintiff. 7. 7. We shall first deal with the question arising in the civil revision petition, namely, whether the defendant is entitled to claim relief under S.80B of the Act. It is solely on the provision contained in Explanation IIA added in S.2(25) of the Act by Act 17 of 1972 that the Appellate Authority has declared the defendant to be a kudikidappukaran entitled to relief under S.80B of the Act. That Explanation reads: "Notwithstanding any judgment, decree or order of any court, a person, who, on the 16th day of August, 1968, was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of January, 1970, shall be deemed to be a kudikidappukaran. Provided that no such person shall be deemed to be a kudikidappukaran (a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors-in-interest, if (i) such dwelling house was constructed at a cost, at the time of construction, exceeding seven hundred and fifty rupees; or (ii) such dwelling house could have, at the time of construction, yielded a monthly rent exceeding five rupees; or (b) if he has a building or is in possession of any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, either as owner or as tenant, on which he could erect a building." A Division Bench of this Court of which one of us (Eradi, J.) was a member had occasion to consider the scope of the said Explanation in Chinnan v. Gopinathan,1975 KLT. 50. In that case the constitutional validity of the said Explanation was challenged on the ground of contravention of Art.19 (1) (f) and Art.31A of the Constitution. In defence to the said contention it was urged on behalf of the State that it could never be presumed that is enacting the impugned Explanation the legislature intended to create rights in favour of persons committing illegal acts such as getting into possession of property unlawfully and that hence the impugned Explanation should be understood as conferring rights only on persons who were in lawful occupation. This contention was accepted by the Division Bench and it was held that despite the wide language used in Explanation IIA the said provision has to be read and understood as conferring benefits only on persons who are in lawful occupation and as being inapplicable to cases of trespassers. We are in respectful agreement with the said view expressed by the Division Bench. 8. In the present case, it is clearly seen from the judgment rendered by this court in S. A. No. 398 of 1964 that the basis on which this court set aside the decision of the District Court and restored the decree for eviction was that the adverse possession of the defendant could be regarded as having commenced only about two years prior to the date of institution of the suit and that hence the claim of the defendant that he had acquired title by prescription was unsustainable. In other words, the finding of this court was that the defendant was in wrongful possession of the building at the time of institution of the suit but the duration of that possession was not long enough to perfect a title by prescription. It is noteworthy that the case of the defendant throughout the course of the proceedings in that suit until determination of the matter by this court in second appeal was that he was in occupation of the building adversely to the plaintiff. In the light of the decision of the Division Bench referred to above (1975 KLT. 50) it is clear that the defendant, who has been in occupation of the building only as a trespasser, cannot claim the benefit of Explanation II A. Hence it is not possible to uphold the view taken by the Appellate Authority that the defendant is entitled to be deemed to be a kudikidappukaran by virtue of Explanation I1A. The civil revision petition is accordingly allowed, the judgment of the Appellate Authority is set aside and the order of the Land Tribunal, Trivandrum dismissing O. A. No. 787 of 1970 will stand restored. 9. In the light of the conclusion that we have reached while dealing with the civil revision petition that the defendant is not entitled to the benefit of Explanation IIA it must follow that the decision of the District Judge holding that Explanation IIA does not apply to the present case has only to be affirmed. 9. In the light of the conclusion that we have reached while dealing with the civil revision petition that the defendant is not entitled to the benefit of Explanation IIA it must follow that the decision of the District Judge holding that Explanation IIA does not apply to the present case has only to be affirmed. We accordingly confirm the judgment and decree of the District Court and dismiss the second appeal. 10. The appellant will pay the costs of the respondent in the second appeal. The parties will bear their respective costs in the civil revision petition.