High Court Kerala High Court

P.Thankamony vs Ponnamma on 24 January, 2007

Kerala High Court
P.Thankamony vs Ponnamma on 24 January, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 30 of 2006()


1. P.THANKAMONY, MANKULATHU VEEDU,
                      ...  Petitioner

                        Vs



1. PONNAMMA, MANKULATHU VEEDU,
                       ...       Respondent

2. VISWANATHAN, MANKULATHU VEEDU,

3. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.M.SREEKUMAR

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :24/01/2007

 O R D E R
                     M.SASIDHARAN NAMBIAR,J.

                   ===========================

                     C.R.P.NO.30    OF 2006

                   ===========================



         Dated this the 24th   day of January, 2007



                            O R D E R

Petitioner is the applicant before Land

Tribunal, Thiruvananthapuram and appellant before

Appellate Authority(L.R.), Alappuzha. Respondents

1 and 2 are respondents before the Land Tribunal

and Appellate Authority. Petitioner filed

O.A.247/93 before the Land Tribunal for purchase

of kudikidappu right claiming that she is a

kudikidappukari. Land Tribunal holding that

petitioner did not adduce any oral or documentary

evidence to prove that she has been in possession

of the building prior to 1.4.1964 found that she

is not entitled to the kudikidappu right.

Petitioner challenged that order before Appellate

Authority (LR), Alappuzha in A.A.35/03. The

Appellate Authority after reiterating the

contentions raised by both the petitioner and

respondents dismissed the appeal finding that on

CRP 30/06 2

going through the lower court records and hearing

their counsel there is no merit in the appeal. This

petition is filed challenging that order under

section 103 of Kerala Land Reforms Act.

2. Learned counsel appearing for petitioner

and respondents were heard.

3. Learned counsel appearing for petitioner

argued that both the Land Tribunal and the

Appellate Authority did not consider the

entitlement of petitioner for kudikidappu right

and instead dismissed the application for the sole

reason that petitioner did not establish his

possession prior to 1.4.1964 and therefore

petitioner is not entitled to kudikidappu right.

The question whether a person in possession of a

hut who was put in possession of that hut even

after 1.1.`70 is entitled to claim kudikidappu,if

all the other ingredients are established, is no

more res integra, in view of the decision of this

Court in Vidhyadharan v. Sivadas (2001(2) KLT 605).

Therefore the very basis of rejection of

kudikidappu right claimed by petitioner by the

Land Tribunal and the Appellate Authority is

CRP 30/06 3

unsustainable.

4. Then the question is whether the petitioner

is entitled to kudikidappu right?. This question

was not independently considered by either the Land

Tribunal or the Appellate Authority. Learned

counsel appearing for petitioner argued that even

if the petitioner did not succeed in establishing

his case that he has been put in possession of the

land by the mortgagee, it is the specific case of

respondents, in O.S.2557/03 filed by them for

redemption of the mortgage, where petitioner was

impleaded as eighth defendant, that petitioner was

inducted into possession by the mortgagee. It was

argued that in that case if petitioner is not

having any other land, where he could erect a

homestead and the building is a hut, being its cost

of construction less than Rs.750/- or rental value

at the time of construction less than Rs.5/-,

being a person permitted to occupy the building by

the mortgagee a person in lawful possession of the

land she is entitled to claim kudikidappu and

this question was not considered by the Land

Tribunal or Appellate Authority and so the case has

CRP 30/06 4

to be remitted back to the Land Tribunal for

considering the question afresh. Learned counsel

appearing for respondents vehemently argued that

petitioner has no specific case whether she was

permitted to occupy the land or hut or whether she

constructed the homestead and a decree for

redemption and recovery of possession was already

passed in O.S.2557/93 and in such circumstance,

case need not be remanded and on the materials this

court can find that petitioner is not entitled to

kudikidappu right.

5. True, in the application filed before the

Land Tribunal for purchase of kudikidappu right,

petitioner did not specifically plead with regard

to either the entrustment or whether entrustment

was of the land and she constructed the homestead

or she was entrusted with the hut. What was

contended in the petition was that she has been in

possession of the hut since 1965 and its cost of

construction was Rs.200/- and there is no liability

to pay rent. Learned counsel appearing for

respondents also pointed out that in the written

statement filed before Munsiff Court in

CRP 30/06 5

O.S.2557/93, case of the petitioner was that

mother of respondents permitted petitioner to put

up a hut in the plaint schedule property on 16.8.65

and if so, it could only be a homestead and the

case could only be that petitioner was put in

possession of the land by mortgagor and not by

mortgagee. Learned counsel appearing for petitioner

pointed out that even before Appellate Authority,

as seen from the order, what was contended by

respondents was that mortgagee put petitioner in

possession of property and even if petitioner did

not establish the claim that she was entrusted with

the land and she constructed a homestead, the

case pleaded by respondent enables petitioner to

claim that admitted facts satisfies the definition

of kudikidappukaran as provided under sub section

(25) of Section 2 and therefore petitioner is a

kudikidappukari. On hearing both the counsel, it

is clear that the question whether petitioner is a

kudikidappukari, as defined under sub section (25)

of Section 2, is to be considered first by Land

Tribunal. As the Land Tribunal and the Appellate

Authority did not consider this question, that

CRP 30/06 6

question cannot be decided in this revision for the

first time in exercise of the revisional powers of

this court. The order of Appellate Authority and

the Land Tribunal are set aside. O.A.247/93 is

remanded to the Land Tribunal, Thiruvananthapuram

for fresh disposal in accordance with law. The

Land Tribunal is directed to dispose of O.A.247/93

as expeditiously as possible, at any rate, within

four months from the date of receipt of records.

The parties are entitled to adduce further

evidence, if they chose.

Civil Revision Petition is disposed as above.

M.SASIDHARAN NAMBIAR

JUDGE

tpl/-

M.SASIDHARAN NAMBIAR, J.

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W.P.(C).NO. /06

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JUDGMENT

SEPTEMBER,2006