IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 170 of 2010()
1. CHANDANAVEETTIL SHANTHA,
... Petitioner
Vs
1. P.V.SHANTHA KUMARI,
... Respondent
For Petitioner :SRI.N.NAGARESH
For Respondent :SRI.V.RAMKUMAR NAMBIAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :20/12/2010
O R D E R
PIUS C. KURIAKOSE &
N.K.BALAKRISHNAN, JJ.
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R.C.R. No.170 of 2010
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Dated this the 20th day of December 2010
O R D E R
Pius C. Kuriakose, J.
Under challenge in this revision filed by the
respondent in a rent control proceeding (the alleged tenant)
is the decision of the statutory authorities repelling the
revision petitioner’s case that she is having ‘kudikidappu’
right over the petition schedule building.
2. The Rent Control Court found that the petitioner
is not a ‘kudikidappukari’ mainly on the basis of a report
submitted by a commissioner on the basis of a local
inspection that the petition schedule building is not an
independent building but is a part of two room line building.
The Advocate Commissioner reported that though as
matters exist now there is only one room (petition schedule
R.C.R. No.170 of 2010
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building), on excavation of the adjacent soil it was revealed
that in the beginning there were two rooms and that one of
them was removed. Ext.A1 rent kaychit which is not
denied also strongly supported the Commissioner’s report
that to begin with there were two rooms and only one room
is entrusted with the revision petitioner.
3. Even though Sri.K.Babu, the learned counsel for
the revision petitioner would draw our attention to Ext.C1
Commissioner’s report and submit that what has been
reported by the Commissioner is that on removing the soil
of the lands adjacent to the petition schedule building he
saw basement (Kuzhiyatta) made out of layers of lacerated
stones on all sides. According to Mr.Babu if the petition
schedule building was originally part of two room building
and one room was subsequently removed as alleged by the
landlord kuzhiyatta on basement would be visible only on
three sides and not on all four sides. Mr.Babu would
further argue relying on the judgment of Full Bench of this
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Court in Mary Yohannan v. Sreekumaran Nair [1991(2)
KLT 751 (F.B)] that, even it is assumed that at the time
when the petitioner was originally inducted into the
building it was a part of two room building, then also when
the other room is removed and the petition schedule
building became an independent structure, the petitioner
acquired the status of ‘kudikidappukari’ and became
entitled to purchase ‘kudikidappu’. There is no cut off date
for creation of ‘kudikidappu’ so submitted by the learned
counsel.
4. The submissions of Mr.Babu were strongly
opposed by Mr.V.Ramkumar Nambiar. He drew our
attention to the statutory provisions as well as to the
pleadings of the revision petitioner, and submitted that the
definite case of the revision petitioner is that the building in
question was all along an independent building which the
petitioner’s mother was permitted to occupy. His case has
to fall to the ground in view of Ext.C1 Commission Report
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and Ext.A1 rent chit which is not disputed.
5. Mr.Babu also argued that the Rent Controller was
not justified in permitting adduction of evidence against the
finding of the Land Tribunal. Question whether the
petitioner is a ‘kudikidappukari’ or not is outside the
jurisdictional competence of the Rent Control Court.
6. We have very anxiously considered the rival
submissions with the reference to the statutory provisions
as well as the relevant judicial precedents governing the
issue. It is trite by the judgment of the Full Bench in
Muhammed v. Imbichibi [1974 KLT 738 (F.B)] that a
person in occupation of part of a building cannot be
‘kudikidappukaran’ as part of a building will not qualify as a
hut for the purpose of Section 2(25). Ext.C1
Commissioner’s Report is the main piece of evidence which
is relied on by the statutory authorities to support their view
that the petition schedule building is originally part of a
larger building. The argument of Sri.K.Babu that Ext.C1
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report being a report submitted before the Rent Control
Court pursuant to a commission order issued by that court
cannot have probative value as it is the Land Tribunal alone
which has got power to decide the issue of ‘kudikidappu’
does not appeal to us, at all. The Land Tribunal came to
have of seizin of the matter pursuant to an order of
reference passed by the Rent Control Court under Section
125(3) of the KLR Act only.
7. Though under the scheme of Kerala Land Reforms
Act, it is the Land Tribunal which has got the power to find
one way or other regarding ‘kudikidappu’ and similar rights
and such finding by the Land Tribunal will be binding on the
referring, it cannot be lost sight of that the proceedings
before the Rent Control Court is the main proceedings with
reference to which the essential dispute between the
parties whether or not an order of eviction is liable to be
passed has to be decided. This Court has held in
Kunhammed Koya v. Nallalam Saw Mills [2010 (4) KLT
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79] (authored by one among us PCK(J)] that a referring
court has got power to permit the parties to adduce
evidence on the issue referred to the Land Tribunal, even
after the Land Tribunal has entered its findings as the court
of appeal on the finding of the Land Tribunal is the Rent
Control Appellate Authority. It is very clear from our mind
that Ext.C1 report obtained by the Rent Control Court was a
valuable piece of evidence more so in this case where
Ext.C1 was to in evidence before the Land Tribunal also. A
careful reading of the penultimate paragraph of Ext.C1
would show that what the Commissioner has reported was
only that basement made out of layers of lacerated stones
was seen on all the sides where basement was visible. The
Advocate Commissioner reported pursuant to a specific
representation made by the landlord that there was a room
on the northern side of the petition schedule building. As
rightly argued by the learned counsel for the landlord
execution of Ext.A1 is not specifically denied. What is
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contended is that even prior to Ext.A1 the petitioner’s
mother had been put in possession of the building. Ext.A1
clearly shows that at the time of Ext.A1 the building was
only one room in a larger building with two rooms.
Mr.K.Babu’s argument based on the judgment of Full Bench
in Mary Yohannan v. Sreekumaran Nair also will not come
to his client’s rescue. Ext.A1 rent deed of 1967 shows that,
in 1967 the building in question was part of a two room
building. The definite case of the petitioner is that her
mother was permitted to occupy the petition schedule
building namely the building covered by Ext.A1. The case is
that from the very beginning it was an independent
building, a case which cannot be accepted at all. On going
through the pleadings we do not find any claim that the
petitioner acquired the status of a ‘kudikidappukari’ at any
point of time later on the time of original induction. In the
absence of such pleadings, the case based on the Full Bench
decision in Mary Yohannan v. Sreekumaran Nair cannot be
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countenanced.
According to us there is no illegality, irregularity
or impropriety on the finding concurrently entered by the
Rent Control Appellate Authority and Rent Control Court
accepting the finding of the Land Tribunal that the
petitioner is not a ‘kudikidappukari’.
RCR will fail and stand dismissed.
PIUS C. KURIAKOSE,
JUDGE.
N.K.BALAKRISHNAN,
JUDGE.
Jvt
