IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 392 of 1993()
1. VAREED.
... Petitioner
Vs
1. KURIAN.
... Respondent
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.V.O.JOHN,JOSEPH THOMAS,K.J.ANTONY.
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/03/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.392 OF 1993
===========================
Dated this the 19th day of March, 2007
JUDGMENT
Defendants 2,11, 12, 15 and 16 to 18 in
O.S.392/84 on the file of Munsiff Court, Chavakkad
are the appellants. First respondent was the
plaintiff. On the death of first respondent,
respondents 2 and 3 were impleaded as his legal
heirs. On the death of first appellant other
appellants were recorded as his legal heirs. First
respondent plaintiff filed the suit seeking
recovery of possession of the plaint schedule
property. Plaint schedule property is building
No.187/276 in R.S. No.45/9 of Brammakulam Village.
Case of plaintiff was that plaint schedule
building originally belonged to his predecessor
Pulikottil Tharu and it was granted on rent to
Velukutty under Ext.A1 registered rent deed dated
17.3.1923, and after Velukutty surrendered
possession of the building, for the purpose of his
S.A.No.392/93 2
residence, Kochouseph, the predecessor in interest
defendants 1 and 2 obtained it and he was residing
therein and while so Tharu died and his legal heirs
divided the properties under Ext.A2 partition deed
whereunder the property was alloted to Francis and
Kochouseph was continuing as the tenant of Francis
after a fresh rental arrangement dated 1.1.1960 and
he was residing there with his family and on his
death his tenancy rights devolved on defendants 1
and 2 the children and on the death of Francis, as
per Ext.A3 Will executed by Francis, his right over
the property was bequeathed in favour of plaintiff
and he has title to the property. While so,
claiming that he is a Kudikidappukaran and is
entitled to purchase kudikidappu in respect of 10
cents of the property, first defendant filed
O.A.3760/1970 before Land Tribunal which was
dismissed on 18.11.1972. Plaintiff sent a lawyer
notice terminating the tenancy demanding surrender
of possession and a reply was sent by defendants
contending that the building was constructed by
S.A.No.392/93 3
Kochouseph and it is a kudikidappu. The plea of
kudikidappu is unsustainable and so plaintiff is
entitled to get a decree for recovery of possession
on the strength of his title with future mesne
profits.
2. Defendants 1 and 3 jointly filed a written
statement denying the lease set up contending that
the building was constructed by Kochouseph on the
licence granted permitting Kochouseph to construct
a building on the land and licence is irreovacable
and therefore plaintiff is not entitled to recover
possession of the property. Defendants 2 and 11
filed a joint written statement contending that
Kochouseph was permitted to construct a building by
Tharu and pursuant to the licence Kochouseph
constructed the building and it is a kudikidappu
and Kochouseph had constructed a building and was
residing therein and it is a permanent structure
and amount was spent for the construction and
plaintiff is not entitled to the decree sought for.
Learned Munsiff framed the necessary issues. As
S.A.No.392/93 4
kudikidappu was claimed and question of
kudikidappu raised arises for consideration,
learned Munsiff referred that question to Land
Tribunal under section 125(3) of Kerala Land
Reforms Act. Land Tribunal rendered a finding that
Kochouseph had other properties where he could
erect a hut and therefore he is not a
kudikidappukaran and defendants are not entitled to
kudikidappu right. On receipt of the finding of
the Land Tribunal, learned Munsiff marked Exts.A1
to A8 and Exts.B1 to B6 and accepting the finding
of the Land Tribunal held that defendants are not
entitled to kudikidappu right. Learned Munsiff
also held that defendants did not adduce any
evidence to prove that the licence is irrevocable.
Holding that plaintiff is entitled to recover
possession on the strength of title, suit was
decreed. Appellants challenged the decree and
judgment before District Court, Thrissur in
A.S.311/1990. Learned District Judge on
reappreciation of evidence confirmed the decree and
S.A.No.392/93 5
judgment passed by the learned Munsiff and
dismissed the appeal. It is challenged in the
Second Appeal.
3. The second appeal was admitted formulating
the following substantial questions of law.
1) Whether appellants are kudikidappukars
entitled to the benefit of the Kerala Land Reforms
Act?
2) Even if the predecessor in interest of the
first appellant who constructed the homestead on
the basis of permission obtained from the owner
died whether the irrevocable licence is not
heritable and if so, whether plaintiff is entitled
to the decree for recovery of possession granted by
courts below?
4.Learned counsel appearing for appellants and
respondent were heard.
5. Though defendants claimed that Kochouseph
the father of defendants 1 and 2 constructed the
building as permitted by Tharu, the predecessor in
interest of the plaintiff, and therefore it is a
S.A.No.392/93 6
kudikidappu, Land Tribunal and first Appellate
Court, on the evidence found that defendants are
not entitled to kudikidappu right. Though
appellants in the appeal memorandum contended that
the question of entitlement to kudikidappu right
has to be decided on the status of the alleged
kudikidappukaran before 1.1.1970, in view of the
settled legal position that a kudikidappu can be
created even after 1.1.1970, the said contention
will not stand. Courts below found that
Kochouseph was having land exceeding two acres. No
evidence was adduced to prove that the said land
was not fit enough to erect a homestead. Therefore
the Land Tribunal and the first Appellate Court
rightly found that appellants or the other
defendants are not entitled to the kudikidappu
right. That finding of the courts below is
perfectly correct.
6. The main argument of learned counsel
appearing for appellants was that the right claimed
by defendants under section 60(b) of Indian
S.A.No.392/93 7
Easement Act was not considered by first Appellate
Court and was not properly considered by the trial
court and evidence establish that it was Kochouseph
who constructed the building which is a permanent
structure incurring expenses acting on the licence
and therefore licence is irrevocable. It was
argued that the right of an irrevocable licensee
under section 60(b) of Indian Easement Act is
heritable, though not alienable and on the death of
Kochouseph that right devolved on his sons
defendants 1 and 2 and therefore plaintiff is not
entitled to the decree granted by the courts below.
7. In the written statement filed by
defendants including appellants the necessary
ingredients to attract Section 60(b) of Indian
Eastement Act was pleaded. It was contended that a
licence was granted by the original owner Tharu in
favour of Kochouseph permitting him to erect a
building. It was also contended that acting on
that licence a permanent building was constructed
incurring expenses. It was also contended that on
S.A.No.392/93 8
the death of the original licensee, his rights
devolved on his children, first appellant and
first defendant. Learned counsel relied on the
decision of a learned single Judge of this court in
Mariam v. Choolan (1979 KLT 650) in support of his
submission. Learned counsel appearing for
respondent argued that there is no evidence to
prove the irrevocability of the licence and no
oral evidence was adduced by appellants or other
defendants and they are not entitled to claim the
benefit under section 60(b) of the Act. It was
argued that defendants have no case that there is a
registered deed of licence and therefore the claim
under section 60(b) will not lie.
8. A licence does not create any interest in
immovable property and therefore on the ground that
there is no registered deed of licence, respondents
are not entitled to contend that defendants are not
entitled to the benefit conferred under section 60
(b) of Indian Easement Act. The definition of
Section 52 makes it clear that a licence does not
S.A.No.392/93 9
create an interest in the property. Section 60
also does not provide that the benefit could be
claimed only by a licensee under a written licence
deed or a registered licence deed.
9. Section 60(b) provides that a licence may be
revoked by the grantor unless the licensee acting
upon the licence has executed a work of permanent
character and incurred expenses in the execution.
Therefore when the defendants contended that
Kochouseph was a licensee and acting upon the
licence Kochouseph constructed a building of a
permanent character incurring expenses, it cannot
be said that defendants have not pleaded the
necessary ingredients to claim the benefit under
section 60(b) of the Indian Easement Act.
Chandrasekhara Menon,J. in Mariam’s case (supra)
had occasion to consider the question whether a
person who erected a house acting upon a licence,
who could have otherwise claimed kudikidappu, is a
licensee and if so whether such a licensee could
claim that it is an irrevocable licence and if so
S.A.No.392/93 10
whether the right is heritable on his death. It
was held:
“According to the petitioners,
the permission was granted to
the father of the 1st
respondent to reside in the
premises and it is also stated
before me that permission had
been granted to the
respondent’s father to have
the use and occupation of the
land for the purpose of
erecting a homestead. There is
no evidence in the case as to
when the respondent’s father
died. If it is a case where
the respondent’s father died
after the Act, then under
section 78 his right would
have devolved on his heirs.
S.78 says that the rights of a
S.A.No.392/93 11
kudikidappukaran in his
kudikidappu shall be heritable
but not alienable except to
any person mentioned in sub-
clause (a) or sub-clause (b)
of clause (i) of sub section
(1) of S.75. If he had died
before the Kerala Land Reforms
Act came into force, he was a
kudikidappukaran in the nature
of the permission granted to
him under the general law and
under the general law the
position of the
kudikidappukaran is more or
less in the nature of a
licensee who in pursuance of
the licence had put up a
building on a land. If a
building had been put up in
pursuance of such licence the
S.A.No.392/93 12
licence had become irrevocable
as between the original
parties. It is well settled
that the right of such a
licensee is heritable though
not alienable. (See Amjad Khan
v. Shufiuddin Khan (1925
All.203). It is useful to
refer to Nasirul Zaman Khan
v.Azimullah (28 All.741),
Motilal v. Kabi Mandar (19
C.L.J.221),Surnomoyee v.
Chandar (12 C.L.J.443) etc.
cases referred to by Katiar in
his “Law of Easements and
Licenses” 3rd Edition, at page
405.”
It cannot be disputed that the right of an
irrevocable licensee is heritable, though not
alienable. If Kochouseph had an irrevocable licence
as provided under section 60(b), defendants 1 and 2
S.A.No.392/93 13
are entitled to inherit that right in which event
plaintiff is not entitled to recover possession of
the building. Unfortunately this aspect was not
considered by the courts below. The trial court
answered issue No.9 framed on the claim of
irrevocable licence in two sentences stating that
no evidence was adduced to prove the contention.
The first Appellate Court did not consider the
question at all. Learned counsel appearing for
appellants pointed out that Exts.B2 to B6 series
show that atleast from 1963 onwards building tax
was being paid by Kochouseph and the house was
registered as owned by Kochouseph and how this
happened if the building was constructed by Tharu
as claimed by plaintiff was not explained and
therefore it can only be held that the building was
constructed by Kochouseph acting on the licence and
therefore it is to be held that the licence is
irrevocable.
10. As this question was not considered by the
trial court on the materials and was not considered
S.A.No.392/93 14
by the first Appellate Court at all, interest of
justice warrants that this question is to be
decided by the trial court before granting a
decree for recovery of possession. As no evidence
was adduced by either parties on this aspect, it is
necessary to permit the parties to adduce further
evidence also.
The appeal is therefore allowed. The judgment
and decree passed by learned Munsiff as confirmed
by learned District Judge are set aside.
O.S.392/1984 is remanded back to Munsiff Court,
Chavakkad for deciding the question whether
Kochouseph was lessee or a licensee and if a
licensee whether the licence was irrevocable under
section 60(b) of Indian Easement Act. The parties
are entitled to adduce evidence on this question.
Learned Munsiff has to decide this question in
accordance with law. If it is found that
Kochouseph is an irrevocable licensee and his
rights devolved on defendants 1 and 2, plaintiff is
not entitled to the decree for recovery of
S.A.No.392/93 15
possession. On the other hand, if on the evidence
court finds that Kochouseph was not a licensee or
even if a licensee the licence was not irrevocable
the plaintiff is entitled to recover possession of
the property on the strength of title. Parties are
directed to appear before the learned Munsiff on
24.5.07. Send back the records forthwith.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
———————
I.A.NO.955. /05
IN
M.S.A.NO.1/81
———————
ORDER
23RD MARCH, 2007