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Kerala High Court
Chandanaveettil Shantha vs P.V.Shantha Kumari on 20 December, 2010
       

  

  

 
 
  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.
                ----------------------------------
                  R.C.R. No.170 of 2010
                  ------------------------------
       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

-: 2 :-

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

R.C.R. No.170 of 2010

-: 3 :-

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

R.C.R. No.170 of 2010

-: 4 :-

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

R.C.R. No.170 of 2010

-: 5 :-

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

R.C.R. No.170 of 2010

-: 6 :-

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

R.C.R. No.170 of 2010

-: 7 :-

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

R.C.R. No.170 of 2010

-: 8 :-

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


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