IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 2047 of 1994(H)
1. ELACHAIR
... Petitioner
Vs
1. WILSON
... Respondent
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :SRI.S.V.BALAKRISHNA IYER (SR.)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :14/07/2010
O R D E R
"C.R."
THOTTATHIL B. RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
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C.R.P.NO.2047 OF 1994 ()
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Dated this the 14th day of July, 2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
This matter comes up before us by a reference made by the
learned Single Judge by stating that the case involves important
questions of law, and, therefore, the matter requires to be
considered by a larger bench. We, therefore, bestowed our
anxious consideration to the entire facts and pleadings, material
evidence, order of the Land Tribunal and the judgment of the
Appellate Authority, notwithstanding that no specific question of
law has been pointedly suggested in the reference order, for
consideration.
2. This revision is under Section 103 of the Kerala Land
Reforms Act, 1963, hereinafter referred to as the ‘Act’. The 1st
respondent herein, whom we would hereinafter call the
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‘applicant’, filed an application before the Land Tribunal, under
Section 80B of the Act, for purchase of kudikidappu right. He
put his claim based on Explanation IIA of Section 2(25) of the
Act. His case was that he was in occupation of the land and the
dwelling house therein, from 16.8.1968 to 1.1.1970 and even
thereafter, that being the statutory requirement to claim benefit
of Explanation IIA of Section 2(25) of the Act, which is a code by
itself and operates notwithstanding any judgment, decree or
order of any court.
3. For the purpose of the case in hand, we do not deem it
necessary to examine as to whether the different conditions as to
the nature of the building, costs of its construction etc. have
been satisfied in terms of the provisions in Explanation IIA and
the provisos thereunder. The short issue to be considered is as
to whether the applicant could be treated as a person “in
occupation” of the land and dwelling house during the relevant
time, that is, from 16.8.1968 to 1.1.1970.
C.R.P.2047/94 3
4. The undisputed facts are that the land originally
belonged to Kunhi, who filed O.S.No.620/1104 ME for eviction of
four persons including Mathai Kathanar and his wife Kunhitti.
Mathai Kathanar defended that case contending that he had put
up a building and is residing there. That suit was decreed
ordering eviction, also by paying Kathanar value of
improvements. The sequence of events thereafter in relation to
that suit is irrelevant for the purpose of the issue in hand. All
that deserve to be noticed is that Mathai Kathanar and his wife
Kunhitti had three children – Mathew, Mariamma and Elachiar.
Kunhitti, thereafter, sued her son Mathew by filing O.S.No.315
of 1964 seeking his eviction from the building. Mathew set up a
case that he has a lease agreement with his mother Kunhitti.
That found its waterloo and O.S.No.315 of 1964 was decreed
holding that Mathew was only a trespasser and that he is liable
to be evicted. That decree is stated to be pending execution.
5. The applicant Wilson is one among the five children of
the aforesaid Mathew and his wife Thankamma. Wilson, who,
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going by the materials on record, was born in 1958, filed the
original application before the Land Tribunal claiming that he
was in occupation of the building in question which is the very
same building involved in O.S.No.315 of 1964. We may, at once,
notice that in 1968, he would have been hardly ten years old.
The relevant period for the purpose of Explanation IIA of Section
2(25) of the Act is 16.8.1968 to 1.1.1970. The question is
whether he who resided in the building along with his siblings
and their father Mathew, who faced the decree for eviction,
could claim occupation of the building to set up a right referable
to Explanation IIA of Section 2(25) of the Act.
6. In this context, the learned senior counsel for the
applicant (1st respondent herein) argued that the operation of
Explanation IIA is notwithstanding any judgment or decree, and
therefore, the findings in O.S.No.315 of 1964 would have no
bearing on the claim set up by the applicant. What is provided
by the non obstante clause to Explanation IIA to Section 2(25) of
the Act is that the kudikidappu right referable to that provision
C.R.P.2047/94 5
on the basis of any occupation and the jurisprudential content of
that right would not get diluted in any manner by any judgment,
decree or order issued earlier. That does not mean that the
courts are disentitled or precluded from looking into earlier
judgments which decided other issues of facts if could be treated
as conclusive on material aspects and particulars which would
have an impact on the ultimate question for decision under
Explanation IIA of Section 2(25) of the Act. The decree in
O.S.No.315 of 1964 and the judgment thereof categorically
negatived the plea of Mathew that he was a lessee under his
mother Kunhitti. It was found that he is a trespasser liable to be
evicted through the process of law. Possession is a necessary
element to treat a person as a trespasser. Obviously, the clear
finding in O.S.No.315 of 1964 was that Mathew was in
possession. If that be so, the said finding against Mathew cannot
be ignored while his son Wilson claims that he was in occupation
of the very same building when he was 10 to 12 years old and on
the basis of that occupation, he is entitled to an independent
right referable to Explanation IIA to Section 2(25) of the Act. We
C.R.P.2047/94 6
find pearls of wisdom in this regard in the judgment of this Court
in Mariam and Others v. Ouseph Xavier (1971 KLT 709),
wherein, Justice V.R.Krishna Iyer succinctly states that “the law
would reduce itself to an absurdity if every man, woman and
child in a hut begins to set up an independent kudikidappu right
merely because the master of the household has taken
permission to occupy and the others are inhabiting the house
along with him.” We are aware that permission for the purpose
of occupation is not an element which is relevant for deciding a
claim under Explanation IIA. Therefore, we treat it that the
claim of the applicant has to be decided notwithstanding
whether his father had taken any permission from any person to
occupy building or land. That position notwithstanding, it has
necessarily to be laid down that the principle enunciated as
above, by Justice Krishna Iyer applies on all fours even to cases
where the kudikidappu right that is sought to be established is
independent of any permissive occupation. So much so, the
judgment in O.S.No.315 of 1964 nails down the claim of the
applicant on the face of the findings therein that Mathew is a
C.R.P.2047/94 7
trespasser. Kunhitti, whose other heirs, namely, the sisters of
Mathew and their estate are the respondents in the proceedings
initiated by the applicant Wilson.
7. For the aforesaid reasons, we find that the occupation
claimed by the applicant Wilson has no relevance for the purpose
of Explanation IIA of Section 2(25) of the Act. We are also of the
view that the applicant Wilson, at the age of 10 or 12, apart from
the fact that he was a minor, could not have, by reason of his
tender age, set up an occupation which could be taken
cognizance of by law independent of the lease claimed by his
father and the possession of his father as found by the civil court
in O.S.No.315 of 1964.
8. The Appellate Authority, in our view, did not exercise its
authority under Section 102 of the Act in deciding the appeal.
The final order passed in the appeal by the Appellate Authority
and the decision of the Land Tribunal, which has merged therein,
are erroneous in law and are liable to be set aside in exercise of
C.R.P.2047/94 8
the powers under Section 103 of the Act. Hence, this revision
succeeds.
In the result, this revision is allowed setting aside the
impugned judgment of the Appellate Authority and the order of
the Land Tribunal. Resultantly, O.A.No.87 of 1978 on the file of
the Land Tribunal, Chavakkad, is dismissed. The revision
petitioner is entitled to costs through out.
THOTTATHIL B. RADHAKRISHNAN
JUDGE
S.S.SATHEESACHANDRAN
JUDGE
prp
THOTTATHIL B. RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
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C.R.P.NO.2047 OF 1994 ()
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O R D E R
14th day of July, 2010
C.R.P.2047/94 10