ACHUTHAN v. NARAYANI AMMA — 1979 DIGILAW 191 (KER)

Judgment :- Janaki Amma J. The building involved in the present case and the paramba wherein it is situate were originally owned by the Arackal tarwad. Thencheri Cheriyath Madavi Amma was holding the same on kuzhikanam right from the Arackal tarwad. In 1943, the item was leased out to Parambath Ramunni as per document No. 1515 of 1943 of Cannanore Registry Office. The children of Madhavi Amma-Narayanan Nambiar and Narayani Amma got the item as per document No. 2500 of 1948. Ramunni attorned to them during the same year. On 4-1-1954, Ramunni executed a koolichit in favour of Madhavi Amma as the karanavasthree of her tavazhi in respect of the dwelling house situated in the property alone. It is mentioned in that document that the rights under the marupat of 1948 have been orally surrendered on 11-18-1953 to the person in whose favour it was executed. A period of one year had been fixed in the koolichit Narayani Amma, the daughter of Madhavi Amma, who got the item in a partition in her tavazhi instituted O.S. 401 of 1964 for recovery of possession of the building impleading Ramunni and also Cheeya and her son Achuthan. Ramunni contended that the koolichit was a concocted one and that he had let the building to Cheeya under a koolichit dated 19-5-1952. Cheeya and Achuthan claimed that they were in occupation of the building on a rent of Rs. 3/- per month. They claimed to be kudikidappukars entitled to fixity of tenure. While the suit was pending, Cheeya and Achuthan filed K. K. No. 584/SR/65 for registration of the Kudikidappu right. The Tahsildar, Cannanore, dismissed the claim as it was found that the value of the house at the time of construction exceeded Rs. 400/-, the limit fixed under Act 1 of 1964. Relying on the above finding, the Additional Munsiff decreed the suit for recovery of possession of the building. The decision was confirmed in appeal, A.S. 542 of 1967. While the matter was pending execution, the three daughters of Cheeya instituted O.S. 889 of 1969 for an injunction restraining Narayani Amma from executing the decree and claimed that they had kudikidappu right in the property, impleading Ramunni and Achuthan also as defendants. By that time, Act 1 of 1964 stood amended by Act 9 of 1967. While the matter was pending execution, the three daughters of Cheeya instituted O.S. 889 of 1969 for an injunction restraining Narayani Amma from executing the decree and claimed that they had kudikidappu right in the property, impleading Ramunni and Achuthan also as defendants. By that time, Act 1 of 1964 stood amended by Act 9 of 1967. Under the said amendment, the limit for the cost of construction of the dwelling house in the case of a kudikidappu was raised to Rs. 500/- and that for the rent of the building was enhanced to Rs. 5/-. While the suit was pending, the Kerala Land Reforms Act was amended by Act 35 of 1969. Under the said amendment, the limit for cost of construction was further enhanced to Rs. 750/- and the kudikidappukars were given the right to purchase the kudikidappu The plaintiffs in O.S. 889 of 1969 and their brother, Achuthan filed O.A. 579 of 1971 before the Land Tribunal, Edakkad for the purchase of kudikidappu right under S.80B of the amended Act. The petition was allowed by the Land Tribunal on 19-6-1972. In view of S.125 of the Kerala Land Reforms Act, the Munsiff, Cannanore adopted the finding of the Land Tribunal and decreed the suit as sued for. The disposal of the suit was in September, 1972. Narayani Amma filed A. A. 883 of 1972 against the order of the Land Tribunal. She also filed A.S. 223/72 before the Subordinate Judge, Tellicherry against the decree in O.S. 889/69. The Appellate Authority held that under S.2 (25) (b) of the Land Reforms Act, to enable a person in occupation of a but to claim kudikidappu right, permission to occupy the but should have been given by a person in lawful possession of the land, in respect of a but belonging to him. According to the Appellate Authority, permission by Ramunni was insufficient as the but did not belong to him. The fact that the mother of the petitioner was residing in the house since 1952 was not sufficient according to the Appellate Authority to attract the provision in Explanation IIA to S.2(25) as the presumption regarding permission stood rebutted by the terms of the marupat. The petitioners were, therefore, held to be not kudikidappukars. As the parties, in A.S. 223 of 1972 had agreed to abide by the decision of the Appellate Authority, that appeal was allowed. The petitioners were, therefore, held to be not kudikidappukars. As the parties, in A.S. 223 of 1972 had agreed to abide by the decision of the Appellate Authority, that appeal was allowed. S.A.1232 of 1976 filed by the plaintiffs in O.S. 889 of 1969 is against the decision in A.S. 223 of 1972. CRP. 834 of 1976 filed by them is against the decision in A.A. 883 of 1972. Since the main decision is that of the Land Tribunal, the parties will be referred to according to their rank in O.A. 579 of 1971. 2. The learned Counsel for the petitioners mainly based the claim of the petitioners on S.2 (25) of Act 1 of 1964, as amended by Act 17 of 1972. The said amendment came into force on 2-111972 before appeals were filed before the Appellate Authority and the Subordinate Judge's Court. There is no scope for doubt that the appeals should have been disposed of on the basis of the Kerala Land Reforms Act as it stood amended by Act 17 of 1972. The said amendment came into force on 2-111972 before appeals were filed before the Appellate Authority and the Subordinate Judge's Court. There is no scope for doubt that the appeals should have been disposed of on the basis of the Kerala Land Reforms Act as it stood amended by Act 17 of 1972. The relevant portion of the definition of 'Kudikidappukaran' under Act 1 of 1964 and of Explanation HA after Act 17 of 1972 read as follows: "Kudikidappukaran" means a person who has neither a homestead nor any land exceeding the extent of three cents in any city or major municipality or five cents in any other municipality or ten cents in any Panchayath area or township, in possession either as owner or as tenant, on which he could erect a homestead and- (b) 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; and "Kudikidappu" means the land and the homestead or the but so permitted to be erected or occupied together with the easement attached thereto: Explanation IIA 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 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 3. The case of the petitioners is that they fell within the definition of 'Kudikidappukaran'. The case of the petitioners is that they fell within the definition of 'Kudikidappukaran'. In the alternative, they point out that they along with their mother, Cheeya were in occupation of the dwelling house on 16th August, 1968 and continued to be in occupation till the 1st of January, 1970 and thereafter also and, therefore, they should be deemed to be kudikidappukars, under Explanation IIA, added in 1972. 4. That Cheeya was in occupation of the dwelling house on 16th of August, 1968 and that she and the petitioners continued to be in occupation thereafter do not admit of any doubt in view of the decree in O. S.401 of 1964. There is no case that the cost of construction of the dwelling house exceeded Rs.750/-. The learned Appellate Authority, however, held that for the petitioners to claim kudikidappu right they should have been permitted to occupy the dwelling house by Narayani Amma to whom the building belonged. In other words, according to the Appellate Authority, Ramunni also was given permission by Narayani Amma to occupy the building and the permission granted by Ramunni to the petitioners is not sufficient for conferring on them the rights of Kudikidappukars. The petitioners would contend that the definition of a Kudikidappukaran does not warrant such a conclusion and that S.2(25) (b) only says that the claimant to Kudikidappu right should have been permitted by the person in lawful possession of the property including the but to occupy the but in respect of which the right is claimed. In the instant case, Cheeya, the mother of the petitioners executed the registered coolichit in favour of Ramunni on 19-5-1952. Even as per the recitals in Ext. BI, the Coolichit produced by the respondent, Ramunni surrendered the land wherein the dwelling house is situate only on 18-11-1953. Ramunni, was, therefore, in lawful possession of the land on the date of execution of the Coolichit by Cheeya. He bad a tenancy right in respect of both the land and the building. The word 'belonging to such person' need not mean, according to the petitioners, that the building should be owned by the person who granted permission to occupy the building. Reliance was placed on the following observations of the Supreme Court in Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur (AIR. 1965 SC. 1923). The word 'belonging to such person' need not mean, according to the petitioners, that the building should be owned by the person who granted permission to occupy the building. Reliance was placed on the following observations of the Supreme Court in Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur (AIR. 1965 SC. 1923). "Though the word" belonging" no doubt is capable of denoting an absolute title, is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by that word. In Webster "belong to" is explained as meaning inter alia 'to be owned by, be in possession of". The precise sense which the word was meant to convey can therefore be gathered only by reading the document as a whole and adverting to the context in which it occurs." 5. It is no doubt true if the words 'belonging to' in S.2(25) (b) is given the meaning 'in the possession of permission given by a person in possession of a but to occupy the but would be sufficient to confer on such occupant the status of a Kudikidappukaran. But such an interpretation will be against the ordinary canons of construction of a Statute. The general rule is that when the Legislature uses different words in the same section, they are intended to have different meanings. So also the same word used in different places in a section would ordinarily have the identical meaning where ever it is used. S.2(25) (b) contains the words "in lawful possession" and also the phrase "belonging to"' In the absence of other indications, they must be presumed to have different meanings. In other words, the words 'belonging to' could have been used only to mean ownership of the hut. That this is so is further made clear from the use of the words 'belong to any other person' in Explanation.lIA to S.2 (25). Evidently, the phrase "belonging to" in Explanation.lIA does not mean "in the possession of". The phrase "belonging to" used in the different places in the section should, therefore, indicate ownership of the dwelling house. 6. This is however a case where Explanation IIA to S.2 (25) squarely applies. Evidently, the phrase "belonging to" in Explanation.lIA does not mean "in the possession of". The phrase "belonging to" used in the different places in the section should, therefore, indicate ownership of the dwelling house. 6. This is however a case where Explanation IIA to S.2 (25) squarely applies. Under Explanation IIA, if the claimant to Kudikidappu right was in continuous occupation of the dwelling house (whether constructed by him or his predecessors-in-interest or belonging to any other person) from 16th of August, 1968 till 1st of January, 1970, he would be deemed to be a kudikidappukaran, provided that in cases where the dwelling house is not one constructed by himself or his predecessors-in-interest, the cost of construction did not exceed Rs. 750/-, or the rent that it could have fetched at the time of construction did not exceed Rs. 5/-. If the above conditions are satisfied, the person concerned need not prove that he had the requisite permission from the owner of the land or of the building. Even in the absence of proof of such permission, he would be deemed to be a kudikidappukaran. No doubt, there are rulings to the effect that the Explanation has no application in cases where the original occupation of the dwelling house was by way of trespass or where it is vitiated by lis pendens. But in this case, the occupation of Cheeya and thereafter of the petitioners was not by way of trespass. Since the occupation commenced even prior to the suit O.S. 401 of 1964, it is also not vitiated by lis pendens. 7. Reference may, in this connection, be made to the decision of the Supreme Court in State of Bombay v. Pandurang (AIR. 1953 SC. 244) where the Supreme Court had occasion to consider the effect of the words "be deemed". The following passage from the above decision will make the matter clear: "When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion, (vide Lord Justice James in Ex. Parte Walton: In re Levy. (1881) 17 Ch.D. 746 at P. 756 (A). Parte Walton: In re Levy. (1881) 17 Ch.D. 746 at P. 756 (A). If the purpose of the statutory fiction mentioned in S.15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co., Ltd. v. Finsbury Borough Council (1952) A.C. 109 (B), Lord Asquith while dealing with provisions of the Town and Country Planning Act, 1947, made reference to the same principle and observed as follows: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it conies to the inevitable corollaries of that state of affairs." 8. In the light of the above principle, even in the absence of permission by the respondent to occupy the dwelling house the petitioners are entitled to claim benefit of Explanation II A. The Appellate Authority and the Subordinate Judge, Tellicherry overlooked the above aspect of the case. Their decisions are, therefore, not sustainable in law. The petitioners are entitled to kudikidappu right and as such not liable to be evicted. They are also entitled to purchase the kudikidappu right under S.80B of the Land Reforms Act. 9. The order of the Appellate Authority and the decree of the Subordinate Judge are therefore, set aside and the order of the Land Tribunal and the decree of the Munsiff will stand restored. The Second Appeal and the Civil Revision Petition are accordingly allowed. In the circumstances of the case, the parties will bear their respective costs. Subramonian Poti J. 1A. I agree with the conclusion reached by Janaki Amma, J. I would like to add a few words of my own. It has been found by the learned judge that Explanation IIA to S.2 (25) of the Kerala Land Reforms Act applies to the case. Subramonian Poti J. 1A. I agree with the conclusion reached by Janaki Amma, J. I would like to add a few words of my own. It has been found by the learned judge that Explanation IIA to S.2 (25) of the Kerala Land Reforms Act applies to the case. S 2(25) of the Act which defines the term 'Kudikidappukaran' has been subjected to a series of legislative exercises from time to time. Explanation IIA was inserted with effect from 1-I-1970 by Act 17 of 1972. That Explanation without the proviso reads: "Explanation II-A.-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". There was a proviso in the definition of the term'Kudikidappukaran' as the Act stood prior to its amendment by Act 17 of 1972 but as amended by Act 35 of 1969. That proviso read: "Provided that a person who, on the 16th August, 1968, was in occupation of any land and the homestead thereon, or in occupation of a but belonging to any other person, and who continued to be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be in occupation of such land and homestead, or hut, as the case may be, with permission as required under this clause." That amendment was evidently brought in by Act 35 of 1969 to meet the situation brought about by a judgment of this Court as indicated in the legislative history of the provision in Mariam v. Xavier, 1971 KLT. 709. 709. In Para.9 of the judgment Krishna Iyer, J., noticed that: "Even when in Explanation I in Act 30 of 1958, Explanation II of Act 1 of 1964, and the proviso in Act 35 of 1969, a legal fiction was enacted in favour of occupiers who remain without consent, it is significant that the legislature does not "deem" them to be kudikidappukars as such but only to possess the permission required under this clause." I had occasion to express my disagreement with the view taken by Krishna Iyer, J, in the said decision in S. A. No. 1345 of 1967 which judgment has been noticed in some decisions of this court but have not been approved or followed. The legislature might have taken the clue from the judgment of Krishna Iyer J. Explanation IIA was added in place of the original proviso. As the Explanation now stands any person who on the 16th day of August, 1968 was in occupation of any land and the dwelling house thereon and continued to be in such occupation till the 1st day of January, 1970, shall be deemed to be a kudikidappukaran. It means that on proof of the fact of occupation on 16th day of August, 1968 and continuance of such occupation till I-1-1970 there shall necessarily be an assumption which is irrebuttable that the person concerned is a kudikidappukaran. According to me this is the plain meaning. The legislature has, over the years, concerned itself with meeting the situation arising from judgment of this court from time to time and last of these attempts is by incorporation of Explanation IIA. I had expressed the view in the judgment in S. A. 1345 of 1967 that even under the proviso as it stood prior to the incorporation of Explanation IIA the same result did follow. But evidently that view was not accepted by a larger bench of this court. Evidently explanation IIA was intended to make the intention of the legislature clear beyond doubt. It was intended to express beyond doubt that on proof of certain facts the case that a person is a kudikidappukaran stands proved. But nevertheless this court in later decisions seems to have taken the view that Explanation IIA must be read and understood so as to exclude the possibility of a trespasser being treated as kudikidappukaran even though he satisfies the requirement of Explanation IIA. But nevertheless this court in later decisions seems to have taken the view that Explanation IIA must be read and understood so as to exclude the possibility of a trespasser being treated as kudikidappukaran even though he satisfies the requirement of Explanation IIA. According to me such a question would not arise at all, for, if proof of occupation on 16-8-1968 and continuance thereafter till 1-I-1970 is proved there is no scope for enquiring into the origin of such occupation. Any enquiry as to how such person came to occupy would be irrelevant and not called for. It would be wrong to translate this idea as 'a trespasser is entitled to the benefit of Explanation IIA.' The examination of the question whether a person who satisfies the requirements of Explanation IIA had the origin of his occupation in trespass or in consent is not a matter for enquiry and is not relevant. Following the two decisions of this court my learned brother Janaki Amma J., has gone into the facts of the case to find whether the origin of the occupation of the person who claims kudikidappu rights in this case was trespass or not and on the evidence finds that it is not by trespass. I am of the view that such an enquiry is not called for and even without going into the question on the facts proved it could be found that there is kudikidappu right, It is because of this difference in approach that I thought of recording my views on this question by a separate affirming judgment. 2A. Of course, Janaki Amma J., was only adopting the view expressed by the two Division Benches of this Court in Chinnan v. Gopinathan 1975 KLT. 50 and Sankaran v. Kumaran,1977 KLT. 275. Both are Bench decisions of this Court. The latter decision merely purports to follow the earlier decision. Despite the specific language of Explanation IIA which does not give room for any enquiry into the question of origin of occupation the scope for examination had been widened because in the case before the Division Bench in Chinnan v. Gopinathan, 1975 KLT. 50 there was a challenge to the validity of the section as contravening Art.19 (1) (f) of the Constitution and the learned judges assumed that the section could be protected only if it is read limited to cases of occupation otherwise than by trespass. 50 there was a challenge to the validity of the section as contravening Art.19 (1) (f) of the Constitution and the learned judges assumed that the section could be protected only if it is read limited to cases of occupation otherwise than by trespass. Evidently therefore it was in an attempt to read the provision as constitutional that addition was made to the express terms of the Explanation. But in doing so the Division Bench failed to notice that there was no need to read it in that manner as there was constitutional protection to that provision by inclusion in the IXth Schedule. By its inclusion it was in immune from attack on the ground that the provision violated Art.19 of the Constitution. Therefore the reasoning in the decision in Chinnan v. Gopinathan, 1975 KLT. 50 would plainly be unsustainable. The learned Judge Govindan Nair C. J. who was in the Division Bench in that case had occasion to notice this in a Full Bench to which I too was a party. I am referring to the decision in Mohammed Mytheen v. Sreedharan,1976 KLT. 919. In Para.11 of that Judgment Govindan Nair C. J. speaking for the Full Bench said thus: "I don't think it is necessary to interpret Explanation IIA to S.2 (25) in this case. Nor is it necessary to consider whether the decision in Chinnan v. Gopinathan 1975 KLT. 50 requires reconsideration in view of the fact that it was not noticed therein that Act 17 of 1972 which enacted the explanation had also been included in the Ninth Schedule. The inclusion in the Ninth Schedule will have only the effect of immunity from attack. The question of the interpretation of the explanation would arise even after the inclusion in the IXth Schedule. But we do not propose to interpret the scope and ambit of the explanation as it is unnecessary for the purpose of the case." Evidently the Division Bench in Sankaran v. Kumaran,1977 KLT. 275 did not notice the inclusion of Explanation IIA also in the IXth Schedule despite what the Full Bench had said and did not also notice the above passage of the Full Bench extracted here. That is evident from para 7 of the decision in Sankaran v. Kumaran,1977 KLT. 275, where the Division Bench expressed the agreement with the earlier view in Chinnan v. Gopinathan 1975 KLT. That is evident from para 7 of the decision in Sankaran v. Kumaran,1977 KLT. 275, where the Division Bench expressed the agreement with the earlier view in Chinnan v. Gopinathan 1975 KLT. 50 and in support of the view taken therein it held that reading that provision in that manner was called for to understand the provision as within constitutional limits. 3A. The legislative intent has been expressed in no uncertain terms and the legislative history of the provision speaks eloquently to the evident object of enacting Explanation IIA. This was the case also with the provisions which had been enacted earlier with the same end in view. I had indicated in my decision in S. A. No. 1345 of 1967 to which 1 have adverted earlier in this judgment the reason for the anxiety of the legislature to provide for a fiction or deeming in the case of Kudikidappukars.1 may with profit extract what I said there: "The provision to deem that a person is occupation on a particular date must be deemed to be so in occupation with permission is, according to me, intended to obviate the necessity of a kudikidappukaran proving actual permission. It is well known that kudikidappukars are not very often inducted into the property on the basis of any written document. If they are called upon to prove that the land-owner had permitted them to occupy, in most cases it will be found practically impossible for them to prove that they are kudikidappukars. Possibly it is for this reason that the Legislature has introduced the element of legal fiction into the definition that if persons are shown to have erected homesteads in the land of another or to have occupied a hut of another and are shown to have been in such occupation on the particular day the necessity of proving permission either at the inception or continuing with permission is obviated by reason of Explanation II." Again in the same judgment T observed thus: "One has to remember that the purpose of the successive enactments conferring benefits on kudikidappukars is to secure to them fixity in regard to their homesteads. Successive amendments have been made so as to make the burden of proving that they are kudikidappukars less onerous. Successive amendments have been made so as to make the burden of proving that they are kudikidappukars less onerous. For the first time when the legal fiction of a deemed permission was introduced by Explanation.) to S.2(3) of the Kerala Stay of Eviction Proceedings (Amendment) Act 30 of 1958, persons who claimed right as kudikidappukars were apparently able to secure such rights merely on proof that they had been in occupation of the kudikidappu on a particular date. Of Course, l am expressing a view which is consistent with that taken by Velu Pillai. J., and certainly not the view taken by my learned brother Madhavan Nair J. Whatever that be when my learned brother Madhavan Nair. J., restricted the scope of the deeming provision by reason of the use of the term 'Kudikidappukaran' in Explanation II, what was conferred by that Explanation was practically taken away. The legislature has apparently stepped in to remedy the situation. In the proviso advisedly there is no reference to kudikidappukaran as such, but the reference is only to any person. As I said earlier, the legal fiction could have been introduced only for the purpose of enabling the kudikidappukaran to obtain the benefit of the kudikidappu right without being called upon to prove that they had been permitted at one time by the land-owner to construct their hut or had been allowed to occupy the hut belonging to the land-owner, a permission which if called upon to prove in almost all cases it would be found to be difficult of proof. According to me, even going to the intent of the legislature (which, of course, I do not think is called for in this case) the proviso has to be read according to the plain construction which the language warrants". Of Course if there is compelling necessity to read down the rule that may be called for. The Division Bench read it in that manner only because it felt that otherwise the provision would not be constitutionally valid. The Full Bench has rightly noticed that factually this is not correct. The question of constitutional protection would not arise and it appears to me that there is no question of reading the explanation with any proviso or corollary. The Division Bench read it in that manner only because it felt that otherwise the provision would not be constitutionally valid. The Full Bench has rightly noticed that factually this is not correct. The question of constitutional protection would not arise and it appears to me that there is no question of reading the explanation with any proviso or corollary. In this view I would be prepared to hold even without going into the question whether the origin of the possession of the person claiming to be a kudikidappukaran was by trespass or otherwise that he is a a kudikidappukaran if he satisfies the express requirement of Explanation IIA. I agree with the conclusion reached by Janaki Amma J., that the Civil Revision Petition and Second Appeals are to be allowed.