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1996 DIGILAW 356 (KER)

Mohammed v. Abdulla

1996-08-19

P.K.BALASUBRAMANYAN

body1996
Judgment :- Balasubramanyan, J. The respondent plaintiff filed a suit for recovery of possession of the plaint schedule property having an extent of 7 cents in R.S. No. 83/5 of Pathur Village with a building thereon. The appellant defendant contended that he had constructed the building in question and that this was on the basis of a permission granted to him by the plaintiff on 8.8.1981. He therefore, claimed that he was a kudikidappukaran a'nd there could be no recovery of possession of the homestead. The title of the plaintiff having been admitted, the case proceeded on the defendant's plea and rightly so. The defendant produced Ext. B1 to show that he had obtained permission for the construction of the building in R.S.83/5 from the local authority. Under Ext. B2, it turned out that the second defendant, the wife of the first defendant, had herself obtained assignment of the 30 cents of land to the west of the property belonging to the plaintiff which itself was a land assigned to the plaintiff. It appears that from out of the property obtained assignment of, the plaintiff has sold the properties other than the present plaint schedule. The defendants also examined a witness in support of their case. 2. The issue regarding kudikidappu was referred to the Land Tribunal by the Trial Court in terms of S.125(3) of the Kerala Land Reforms Act. The Land Tribunal relying on Ext. B8, a sale deed executed by the plaintiff in favour of a stranger in respect of the balance property found that there was a house in existence in the area that was excluded from the sale deed and that was in fact the plaint schedule property. The Land Tribunal also found that the permission allegedly obtained by the first defendant from the local authority related to the construction of the building in the property lying to the west of the disputed property obtained assignment of by his wife the second defendant under Ext. B2 order of assignment. The Land Tribunal therefore, held that the claim of the defendants that the defendants have constructed the suit building, could not be accepted. B2 order of assignment. The Land Tribunal therefore, held that the claim of the defendants that the defendants have constructed the suit building, could not be accepted. Then the only other possibility for conferring the status of a kudikidappukaran on the first defendant was to find that the building was permitted to be occupied by him by the plaintiff and such building was a but within the meaning of the Act. The Land Tribunal found that the building was not a but since the cost of its construction would have exceeded Rs. 750/- and it would have fetched a rent exceeding Rs. 5/- per month, on the date of its construction. The Tribunal also found that the defendants have failed to establish any case of permission from the plaintiff. It was necessary in this case for the defendants to positively establish a permission from the plaintiff, the owner of the land in question, in view of the fact that what was claimed was that the permission was granted in the year 1981 and Explanation II-A to S.2(25) of the Act had no application. Based on the finding of the Land Tribunal that the first defendant has not established the claim of kudikidappu, the suit was decreed by the trial Court. The defendants went up in appeal. The lower appellate Court, on a reappraisal of the relevant materials, came to the conclusion that the defendants have not established either the permission or the factum of construction of the building. It also held that the building could not be found to be a but on the basis of the materials available. The very case set up by the defendants that permission to occupy was granted in the year 1981 was found against. The decree for recovery was therefore, confirmed. In this Second Appeal, the conclusions of the courts below are challenged. 3. As noted, the permission that was setup was a permission granted on 8.8.1981. To satisfy the definition of a kudikidappukaran under the Act, the defendants had to establish that permission as a positive fact. There is no acceptable evidence to prove the grant of any permission by the plaintiff. The finding of fact rendered in that behalf by the Courts below does not call for any interference in this Second Appeal. To satisfy the definition of a kudikidappukaran under the Act, the defendants had to establish that permission as a positive fact. There is no acceptable evidence to prove the grant of any permission by the plaintiff. The finding of fact rendered in that behalf by the Courts below does not call for any interference in this Second Appeal. Similarly, the courts below have also found that the defendants have not established that the building was constructed by the defendants. Obviously therefore, it could not be held that it was a homestead within the meaning of S.2(25) of the Kerala Land Reforms Act. The defendants could claim the status of kudikidappukaran, even if the permission was established, only by showing that the building was a but as defined under the Act. On the materials, the Land Tribunal and the appellate Court came to the conclusion that the building was not a but since the cost of construction would have exceeded Rs. 750/-and the rent it would have fetched would have exceeded Rs. 5/- per month on the relevant date. The finding that the building is not a but as defined, is also based on relevant materials and calls for no interference in Second Appeal. 4. In such a situation, there is no justification for this Court to interfere with the decree for recovery of possession granted by the Courts below especially when there is no dispute regarding the title of the plaintiff over the plaint schedule property. 5. There is also another aspect. The claim of kudikidappu is based on a case of permission on 8.8.1981, subsequent even to the coming into force of the Kerala Land Reforms Act as amended. It is doubtful whether a right of kudikidappu can arise when the occupation commences after the coming into force of the Kerala Land Reforms Act, as amended by Act 35 of 1969, on 1.1.1970. It is no doubt true that it has been held by some of the decisions of this Court that a claim of kudikidappu can arise in such cases. I think it appropriate to refer to those decisions. 6. In Eliamma Chacko v. Paul (1974 KLT 743), His Lordship Justice G. Viswanatha Iyer held that a right to purchase a kudikidappu is given only to a person who satisfied the definition of a kudikidappukaran on the date the Section permitting the purchase came into force. I think it appropriate to refer to those decisions. 6. In Eliamma Chacko v. Paul (1974 KLT 743), His Lordship Justice G. Viswanatha Iyer held that a right to purchase a kudikidappu is given only to a person who satisfied the definition of a kudikidappukaran on the date the Section permitting the purchase came into force. That Section came into force only on 1.1.1970 and the person concerned was not a kudikidappukaran on that day. In that case also, the claimant was in occupation of the building on 1.1.1970, when the Amending Act 35 of 1969 came into force but as on that day, he did not satisfy the definition of a kudikidappukaran, since he owned another extent of 14 cents of land and a residential building. That was not a case where the occupation itself commenced after 1.1.1970. 7. Purushan v. Prakasan (1977 KLT 10), decided by Mr. Justice G. Balagangadharan Nair was again a case, where the occupant was in occupation on 1.1.1970. He filed an application for purchase of kudikidappu under S.80B of the Act read with S.80A of the Act. While that application was pending, he purchased 85 cents of load fit for erecting a homestead. The question for decision was whether the acquisition of the property after 1.1.1970 can be ignored to confer on him the benefit of kudikidappu or whether the subsequent event can be taken note of to deny him the benefit of the right to purchase. The Court held that the said subsequent event was liable to be taken into account and if so, the claimant would not be entitled to purchase, as a kudikidappukaran. During the discussion, His Lordship noticed S.74 of the Act (wrongly given as S.73 in the report) to say that there was no similar prohibition regarding the coming into existence of a kudikidappu after 1.1.1970. The case proceeded more on the basis of the competence or otherwise of the Court to take note of the subsequent event, to deny relief. The decision in Eliamma Chacko. v. Paul (1974 KLT 743) was distinguished by saying that was the case of an occupant who was disqualified to be a kudikidappukaran as on 1.1.1970. The scope of the definition in S.2(25) of the Act was not considered in that case and as I noticed, that was a case where the claimant was in occupation as on 1.1.1970. 8. v. Paul (1974 KLT 743) was distinguished by saying that was the case of an occupant who was disqualified to be a kudikidappukaran as on 1.1.1970. The scope of the definition in S.2(25) of the Act was not considered in that case and as I noticed, that was a case where the claimant was in occupation as on 1.1.1970. 8. In Raphael Varghese v. Vareed Pappu (CRP 921 of 1974), the question that arose for decision was whether 1.4.1964, the date of the Parent Act, or 1.1.1970 the date of commencement of the Amended Act by Act 35 of 1969 was the relevant date to determine the right to purchase. There again, it was the case of an occupant who was in occupation prior to 1.1.1970 and on 1.1.1970. His Lordship Justice Balakrishna Eradi, (as he then was) speaking for the Division Bench held that the relevant date was 1.1.1970, the date of the coming into force of Act 35 of 1969 and not 1.4.1964, the date of the parent Act, in view of the new definition. In fact, the Division Bench said, "In using the present tense" who has neither a homestead nor any land exceeding in extent ....' the legislature has made it clear that what is relevant to be considered by the court is the state of things obtaining not at any point of time anterior to the date of commencement of Act XXXV of 1969, but as on the date of the commencement of the Amending Act, which introduced the new definition and also on the date of making the application before the Land Tribunal seeking the benefit conferred on Kudikidappukars by the said Act. We see no warrant to restrict the scope of the definition in such a way as to read unto it a limitation that only persons who satisfied the terms of the new definition as on the date of coming into force of Act 1 of 1964 as originally passed, are to be regarded as kudikidappukars" (Emphasis supplied) In my view, this decision clearly reiterates the observation in Eliamma Chacko's case (1974 KLT 743) and is certainly no authority for the proposition that an occupant let into possession after 1.1.1970 can also claim to be a kudikidappukaran. In view, it is an authority for the proposition that the claimant must have been in occupation on 1.1.1970. 9. In view, it is an authority for the proposition that the claimant must have been in occupation on 1.1.1970. 9. Padmanabhan v. Kunhalikutty (1978 KLT 140) was a case where the claimant was in occupation as on 1.1.1970. On that day, he did not satisfy the definition of a kudikidappukaran, since he was holding other land exceeding the limit prescribed by the definition and on which he could erect a homestead. The Division Bench of Mr. Justice Balakrishna Eradi (as he then was) and Mr. Justice Narendran, speaking through Mr. Justice Narendran held that the relevant date to decide the status was 1.1.1970 and by assigning away his land, a person in occupation as on 1.1.1970 and who was not qualified as on that day, did not acquire a right to purchase, unless he established a fresh permission to occupy, after he had sold away his other land. The Division Bench held "It is immaterial whether a person who was a kudikidappukaran as per the definition as it stood prior to 1.1.1970 ceased to be one or a person who was not a kudikidappukaran as per that definition, became a kudikidappukaran from 1.1.1970 because of the new sub-s.25 substituted by the Amending Act 35 of 1969. The kudikidappukaran got the right to purchase his kudikidappu only by the Amending Act 35 of 1969 which was brought in to force with effect from 1.1.1970. So. it goes without saying mat only one who was a kudikidappukaran as per the Act as it stood on 1.1.1970 will get a right to purchase his kudikidappu". (Emphasis supplied) This decision in my view negatives the theory that a person not in occupation as on 1.1.1970, but who commenced it thereafter, can also claim the right of a kudikidappukaran. 10. The next decision to be noted is the one in Kunhimama v. Vasu (1979 KLT 88). The question was whether the dismissal of an application for purchase on the ground that the applicant derived rights after 1.1.1970 was correct. To that extent, it can be said that the decision is in point. 10. The next decision to be noted is the one in Kunhimama v. Vasu (1979 KLT 88). The question was whether the dismissal of an application for purchase on the ground that the applicant derived rights after 1.1.1970 was correct. To that extent, it can be said that the decision is in point. The Division Bench issued notice to the Advocate General who appears to have agreed that it cannot be said that a kudikidappukaran brought into existence after 1.1.1970 is not entitled, on that ground, to the right to purchase, provided the other requirements of the definition of a kudikidappukaran in S.2(25) of the Act stand satisfied. The counsel for the landowner "Fairly conceded that no prohibition either express or implicit on the kudikidappukaran coming into existence after 1.1.1970 can be spelt out from the definition in S.2(25) of the Act". He only tried to contend that S.75(3), 80A, 76, 79, 83, 84 etc indicated this requirement. That question alone was therefore, considered by the Division Bench. It had no occasion to consider the language of the definition in S.2(25) of the Act and though it referred to the decision of the Division Bench in Padmanabhan v. Kunhalikutty (1978 KLT 140), it appears to have assumed that the ratio of that decision is in favour of the concession made by the Advocate General. With respect, it appears to me that the ratio in Padmanabhan's case is to the contrary and in Purushan's case and Padmanabhan's case, the claimants were in occupation on 1.1.1970. Being based on two concessions it cannot be treated as an authority on this question. 11. Then we have the decision in Mohammed v. Abdurahiman (1982 KLT 194). There was no discussion of this question. Mr. Justice Balagangadharan Nair referred to his earlier decision in Purushan v. Prakasan (1977 KLT 10) and the decision in Kiaihimama v. Vasu (1979 KLT 88). With respect, His Lordship did not take note of the fact that in Purushan's case, the occupation commenced prior to 1.1.1970 and the actual conflict between the decisions in Padmanabhan v. Kunhalikutty and Kunhimama v. Ffl5M (1979 KLT 88). 12. Finally, we come to Mary Yohannan v. Sreekumaran Nair (1991 (2) KLT 751). With respect, His Lordship did not take note of the fact that in Purushan's case, the occupation commenced prior to 1.1.1970 and the actual conflict between the decisions in Padmanabhan v. Kunhalikutty and Kunhimama v. Ffl5M (1979 KLT 88). 12. Finally, we come to Mary Yohannan v. Sreekumaran Nair (1991 (2) KLT 751). The Full Bench referring to the decisions in 1977 KLT 10,1979 KLT 88 and 1982 KLT 194 stated that the right is not restricted to persons who acquired the status of kudikidappukaran before 1.1.1970. It does not appear that this aspect was seriously argued before the Full Bench. For, there is no independent consideration of this question. Even the definition in S.2(25) of the Act is not discussed. The decision in Padmanabhan v. Kunhalikutty is not been referred to. With respect therefore, I am inclined to think that though their Lordships approved of the decision in Kunhimama v. Vasu (1979 KLT 88), this question was really not urged seriously or considered in depth. The question is this regard appears to have been only incidentally considered, though sitting single, that also would be binding on me, Appu v. Ramunni (1992 (2) KLT 620) merely proceeded on the basis that a kudikidappu right can be raised after 1.1.1970. 13. The main part of the definition of kudikidappukaran may now be read. "S.2(25). The question is this regard appears to have been only incidentally considered, though sitting single, that also would be binding on me, Appu v. Ramunni (1992 (2) KLT 620) merely proceeded on the basis that a kudikidappu right can be raised after 1.1.1970. 13. The main part of the definition of kudikidappukaran may now be read. "S.2(25). "Kudikidappukaran" means a person who has neither a homestead nor 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, in possession either as owner or as tenant, on which he could erect a homestead and, - (a) 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 (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 hut belonging to such person and situate in the said land; and "kudikidappu" means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto." In addition to using the present tense regarding the possession of other property or dwelling house emphasised by the Division Bench in the decision in Raphael Varghese v. Varied Pappu. (CRP 921 of 1974), both clauses (a) and (b) use the expression "who has been permitted." "Has been permitted" is the present perfect tense of the passive voice of the verb 'permit' and under the rules of grammar that tense is used to denote an action that has just been completed or to denote a past action continuing to the present. Therefore, the words "who has been permitted" used in the definition can only mean a person who was permitted and who continues to be permitted on the date of the Act and not a person who is thereafter permitted. (See Raman Nair, (as he then was) speaking for the Full Bench in Kunhammad Keyi v. Premalatha (1962 KLT 366)). The rule of Grammar is thus in favour of a construction that occupation on 1.1.1970 is a must for claiming protection under S.2(25) of the Act. 14. (See Raman Nair, (as he then was) speaking for the Full Bench in Kunhammad Keyi v. Premalatha (1962 KLT 366)). The rule of Grammar is thus in favour of a construction that occupation on 1.1.1970 is a must for claiming protection under S.2(25) of the Act. 14. Under S.2(25)(b) of the Act even a lessee of land could qualify to be a kudikidappukaran if he has constructed for himself a building for residence. A lease can also be a permission (See Karthyayani Filial v. Appipennu Mathai. (1965 KLT 1212), Manni v. Moidu (1973 KLT 20 FB) and Kunhimoideen Haji v. Audi (1974 KLT 225)). A lease after the commencement of the parent Act is prohibited by S.74 of the Act. So, one class of kudikidappukaran who got permission after 1.4.1964 may be excluded from the definition. The Legislature wanted to confer on him also the benefit. That is why the Legislature roped in also persons who had been permitted to occupy prior to 1.1.1970 and who were in occupation on that day, within the umbrella of protection. A lease of land coming within the purview of the Act cannot certainly be granted after 1.1.1970. Hence, the emphasis on occupation as on 1.1.1970 and its continuation. The intention to protect only one who is in occupation on 1.1.1970 and not one who comes into occupation after that date, is clearly discernible from Explanation IIA to S.2(25) of the Act introduced in the year 1971 though with retrospective effect, from 1.1.1970. Explanation HA insists on occupation on 1.1.1970. These circumstances, in my view, clearly indicate that occupation as on 1.1.1970 is a must for claiming a right as a kudikidappukaran. This is a statute conferring prospective benefit on antecedent facts and this is clear from S.75, S.80A, S.80B and the other related provisions of the Act conferring right on the kudikidappukaran to purchase. Thus, according to me, a person who sets up a case of permission to occupy from a date subsequent to 1.1.1970 cannot qualify to be a kudikidappukaran under the Kerala Land Reforms Act. If the decision in this case was solely dependent on that question, I would have referred the matter to a Division Bench for decision. Thus, according to me, a person who sets up a case of permission to occupy from a date subsequent to 1.1.1970 cannot qualify to be a kudikidappukaran under the Kerala Land Reforms Act. If the decision in this case was solely dependent on that question, I would have referred the matter to a Division Bench for decision. But, since on the facts, the Courts below are right in holding that the defendants are not kudikidappukars and I have agreed with that finding, the adoption of this course in this case is unnecessary. I dismiss the Second Appeal.