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2004 DIGILAW 22 (KER)

Mallika v. State of Kerala

2004-01-20

A.LEKSHMIKUTTY

body2004
Judgment :- This Civil Revision Petition is filed by the petitioner against the judgment in A.A. No.90/1995 on the file of the Appellate Authority (Land Reforms), Thrissur, who was the the respondent in O.A. No.8/1996 on the file of the Land Tribunal, Ernakulam. Respondents 2 and 3 as applicants filed O.A. No.8 of 1986 for purchase of kudikidappu. The 2nd applicant is the aunt (petitioner’s father’s sister) and the first applicant is the husband of the 2nd applicant. They claim kudikidappu right under one Late Aravindakshan Pillai, the father of the petitioner herein. The case of the applicants is that as per the permission given by late Arvaindakshan Pillai, they constructed a homestead in the property at the cost of Rs.150/- and monthly rent yielded would be 50 paise. They have no other land or building in their possession. The petitioner herein who was the respondent in the O.A. resisted the claim of the applicant. As per the petitioner herein, the petition schedule property along with adjacent properties having an extent of 25 ½ cents were allotted to the share of Aravindakshan Pillai, his sister (the 2nd applicant/third respondent herein) and others. They partitioned their property and on the same day a release deed has been executed in favour of late Aravindakshan Pillai by the other sharers. Thankammal, the wife of late Aravindakshan Pillai (mother of the petitioner herein) put up a house in the property and the building tax is being paid by her. The mother of Arvaindakshan Pillai was residing in the petition schedule building and the third respondent herein joined her mother to nurse her since the mother was aged and ailing. Thereafter the first applicant, husband of the 2nd applicant also joined in the house along with his children. Aravindakshan Pillai died on 23-11-1968. Thereafter the mother was taken by one of his brothers to his house and applicants continued their residence in the house on the understanding that they shall surrender the house as soon as they construct a house of their own with the money that the first applicant would get on his retirement. After the death of Aravindakshan Pillai partition was effected in the petitioner’s family and 7 cents of property wherein the petition schedule house is situated was set apart to the share of the petitioner herein, the daughter of Aravindakshan Pillai. After the death of Aravindakshan Pillai partition was effected in the petitioner’s family and 7 cents of property wherein the petition schedule house is situated was set apart to the share of the petitioner herein, the daughter of Aravindakshan Pillai. The petitioner has no other property other than 7 cents allotted to her in the partition. The cost of construction of the house on the date of construction would be more than Rs.2000/- and it would fetch a monthly rent of Rs.25/-. The Land Tribunal, without applying its mind to the relationship between the parties and the rights of the parties over the properties, passed a preliminary order permitting the applicants/respondents 2 and 3 herein to purchase 3 cents of property including the building. Against which the petitioner herein filed appeal as L.R.A.84/1990 before the Appellate Authority. The Appellate Authority confirmed the order of the Land Tribunal and dismissed the appeal. 2. Against the said judgment, the petitioner herein filed C.R.P. No.1181/1992 before this Court. This Court set aside the judgment passed by the Appellate Authority as well as the Land Tribunal and remanded the case before the Appellate Authority for fresh disposal after giving the parties an opportunity to substantiate their respective contention. After remand, the Appellate Authority again found that the respondents/applicants are entitled to purchase kudikidappu, against which this civil revision petitioner is filed by the petitioner herein. 3. The question to be considered is whether there is any illegality, impropriety or irregularity in the impugned judgment. It is admitted by the petitioner herein that the respondents are residing in the building in the petition schedule property from 1960 onwards. Now the contention of the learned counsel for the petitioner is that their occupation in the building constructed by the mother of the petitioner was based on the relationship between the parties. The third respondent herein is the aunt of the petitioner, i.e. father’s sister and the 2nd respondent is the husband of the third respondent. As per the petitioner, the building was constructed by her mother Thankammal in the property belonged to late Aravindakshan Pillai. After construction of the building the late mother of Aravindakrishan Pillai was residing in the building. While so the 3rd respondent joined her to nurse her ailing mother and subsequently 2nd respondent also joined her with their children in the said building. After construction of the building the late mother of Aravindakrishan Pillai was residing in the building. While so the 3rd respondent joined her to nurse her ailing mother and subsequently 2nd respondent also joined her with their children in the said building. According to the petitioner, the respondents herein have no independent right over the property. So mere occupation of the building will not confer any kudikidappu right to the respondents. 4. Both sides have adduced evidence to substantiate their respective contentions. It is admitted by the petitioner that the respondents along with their children are residing in the building from 1960 to the exclusion of others. The contention that the mere occupation will not confer any independent right to the respondents cannot be accepted in the light of the subsequent amendment to the Kerala Land Reforms Act. As per Section 2(25) of the Kerala Land Reforms Act, 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. Explanation IIA says “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 kurikidappukaran; (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. So even if the building is constructed by Thankammal, the mother of the petitioner, as per the amended provisions in the KLR Act, the respondents are entitled to purchase kudikidappu if they satisfy the other conditions. Based on the materials on record, it could be only a hut and not a homestead. The petitioner has no case that the respondents have any other homestead, hut or having any property exceeding 3 cents in the Corporation, 5 cents in a major Municipality or 5 cents in any other Municipality and ten cents in a Panchayat area as owner or tenant. If it so the respondent will definitely come under the purview of deemed kudikidappukars. The petitioner has no case that the respondents have any other building or land in their possession to construct a building. The respondents are residing in the building from 1960 onwards is admitted by the petitioner herein. Then at any rate the respondents can be a deemed kudikidappukars as per the amended Act 17/72. 5. Then the next question to be considered is what was the costs of construction of the building at the time of construction. The costs at the time of construction must be less than Rs.750/- or the rental value should be less than Rs.5/-. In Ext.C1 commission report the commission has assessed the value of the building as 653.50 and the monthly rent yielded was fixed as Rs.4/-. The annual rental value of the building in question is shown as 24/- and Rs.4/- respectively (R1 & R2). As per the respondents, the building was constructed at a cost of Rs.150/- and the monthly rent would fetch only 50 paise at the time of construction. 6. It is submitted by learned counsel for the petitioner that even though he has applied for adducing additional evidence, the appellate court did not allow the petitioner to adduce additionala evidence. Thus evidence was shut out by the Appellate Authority in spite of the direction given by this court. Even if the said application is allowed, it will not improve the case of the petitioner. The evidence adduced in this case would convincingly prove that the respondents are deemed kudikidappukars. The cost of construction of the building at the time of construction was below Rs.750/ and the monthly rent yielded would be below Rs.5/- is clear from Ext.R1 & R2. The evidence adduced in this case would convincingly prove that the respondents are deemed kudikidappukars. The cost of construction of the building at the time of construction was below Rs.750/ and the monthly rent yielded would be below Rs.5/- is clear from Ext.R1 & R2. So even if the report of the Commissioner is not accepted, there is other evidence to show that the value of the building at the time of construction and the monthly rent yielded at the time of construction of the building is less than Rs.750/- and Rs.5/ respectively. If any one f the condition is satisfied, they are entitled to purchase the kudikidappu. In such circumstances, there is no illegality, irregularity or impropriety in the judgment. Hence the Appellate Authority rightly found that the respondents are kudikidappukars entitled to purchase 3 cents of property including the building. But I make it clear that the respondents are not entitled to purchase more than three cents of property inclusive of the building. Hence the C.R.P. is dismissed.