IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 84 of 1993()
1. NELLIKANDI VALIYA POCKER
... Petitioner
Vs
1. POTHACHOLA BAVA
... Respondent
For Petitioner :SRI P.V.JYOTHI PRASAD
For Respondent :SRI K.K.JAYARAJ
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/02/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO. 84 OF 1993
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Dated this the 14th day of February, 2007
JUDGMENT
Plaintiff in O.S.6/88 on the file of Munsiff
Court, Kalpetta was the appellant. Respondent was
the defendant. On the death of the appellant,
additional appellants 2 to 5, his legal heirs were
impleaded in the appeal. Deceased appellant filed
the suit for recovery of possession of the plaint
schedule building. According to plaintiff, plaint
schedule building was rented out to the respondent
as per an oral lease on 1.5.70 on a monthly rent of
Rs.15/- and since then respondent has been in
possession of the same and it was subsequently
enhanced to Rs.30/- from 1.2.81 and respondent
defaulted to pay the rent from January, 1984 and
inspite of Ext.A1 notice dated 26.11.86 demanding
surrender of the building with arrears of rent,
respondent did not surrender or pay rent and
therefore plaintiff is entitled to recovery of
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possession as the tenancy has been terminated by
Ext.A1 notice. Respondent in the written statement
contended that the building was constructed by him
in 1960 and since then he has been in continuous
occupation of the building and he was permitted by
the plaintiff to put up the homestead and since
then he has been in possession of the homestead and
therefore he is a kudikidappukaran entitled to
protection under Kerala Land Reforms Act and he
cannot be evicted. As the question of kudikidappu
raised by the respondent arises for consideration
in the suit, as he is bound to, learned Munsiff
referred the question to the Land Tribunal under
section 125(3) of the Kerala Land Reforms Act.
Land Tribunal after examining the plaintiff and the
defendant and marking the documents rendered a
finding in R.C.30/89 that defendant is a
kudikidappukaran as defined under the Kerala Land
Reforms Act. On receipt of the finding, learned
Munsiff examined plaintiff as PW1, defendant as DW1
and marked Exts.A1 to A3 on the side of the
S.A.84/93 3
plaintiff and Exts.B1 and B2 on the side of the
defendant. As the finding of the Land Tribunal is
binding on the trial court, learned Munsiff
accepting the finding held that as defendant is a
kudikidappukaran plaintiff is not entitled to the
decree for recovery of possession. Plaintiff
challenged the decree and judgment before Sub
Court, Sultanbathery in A.S.45/91. Learned Sub
Judge reappreciated the evidence, including the
finding of the Land Tribunal and confirming the
finding of the Land Tribunal dismissed the appeal.
It is challenged in this second appeal.
2. Second appeal was admitted on formulating
the following substantial questions of law.
(i) Whether the respondent is entitled for the
kudikidappu right even though the plaint schedule
buildings cost of construction was Rs.2,000/-.
(ii) Whether the question that the building
No.63 and the building No.IV/120 is one and the
same or not has to be proved by appellant
eventhough the respondent puts up such a claim.
S.A.84/93 4
On the death of the plaintiff appellant his wife
and children were impleaded as additional
appellants 2 to 9.
3. Learned counsel appearing for appellant and
respondent were heard.
4. The argument of learned counsel appearing
for appellant was that the Land Tribunal wrongly
found that respondent has been in possession of the
disputed building before 1970 on the basis of
Exts.B1 and B2, when respondent as DW1 both before
the trial court and before the Land Tribunal
admitted that the building in the plaint schedule
property is VI/120 and Ext.B1 and Ext.B2 relate to
house No.VI/63 and there is no evidence to prove
that Exts.B1 and B2 relate to the plaint schedule
building and therefore findings of courts below
are erroneous. It was also argued that Exts.A2
and A3 establish that in the Panchayat building tax
demand register, plaintiff is shown as registered
owner of the building and it disproves the case of
respondent that he constructed the building and
S.A.84/93 5
therefore it should have been found that respondent
is not a kudikidappukaran. Learned counsel also
argued that report of the Revenue Inspector shows
that cost of construction of the building was
Rs.2000/- and in such circumstances, it is not a
hut as defined under the Kerala Land Reforms Act
and therefore courts below should have granted the
decree for recovery possession.
5. Learned counsel appearing for respondent
argued that there is no case for plaintiff that
defendant changed his residence from the plaint
schedule building at any point of time after he
started living there and Ext.B2 shows that a ration
card was issued to the defendant to that house in
1980 and Ext.B1 voters list shows that defendant
has been residing in the very same house even
before 1964 and Ext.B1 establish that defendant
has been residing in that building even before 1964
and therefore the case of plaintiff that plaint
schedule building was granted on lease in 1970 has
been disproved and the only other case is that of
S.A.84/93 6
the defendant that he was permitted to put up the
homestead and he constructed the homestead in 1960
and he has been residing therein and that case has
been rightly accepted by courts below and in the
Second Appeal evidence cannot be reappreciated and
therefore the appeal is only to be dismissed.
Learned counsel also argued that when the case of
the defendant is that he is a kudikidappukaran as
he was permitted to put up a homestead and he put
up the homestead in 1960, cost of construction of
the hut assessed by the Revenue Inspector on the
basis of the case of the plaintiff that it was
constructed in 1970, cannot be relied on and in any
event when it is a homestead the cost of
construction is not relevant or material and no
substantial question of law is involved and
therefore Second Appeal is only to be dismissed.
6. It is the specific case of the plaintiff
that plaint schedule building was entrusted to the
defendant as per an oral lease in 1970. The case
of the defendant was that there was no such
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entrustment and in fact the building was
constructed by their predecessor as permitted by
the plaintiff in 1960 and it is a homestead and
respondent has no other house or land where he
could erect a homestead and therefore he is a
kudikidappukaran. The number of the building was
not shown in the plaint. True, Exts.A2 and A3 show
that number of the building from 1986 onwards is
IV/120 of Muttil Panchayat. The previous number of
the building is not shown in Ext.A3. Ext.A2 only
shows that building tax was paid by the plaintiff
for the plaint schedule building also for the year
1988-89. Even according to plaintiff, the building
was in existence atleast from 1970. He did not
make any attempt to produce the previous building
tax assessment register extract to show what was
the number of the building during 1970 or earlier
years. As rightly pointed out by learned counsel
appearing for respondent, even according to
plaintiff, defendant has been residing in this
building from 1970 onwards. Ext.B2 ration card was
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issued to the defendant for the period 1980-84 and
it was issued to building No.IV/63. It is on this
basis, learned counsel appearing for appellant
argued that ration card was in respect of another
house and not for the plaint schedule building.
When plaintiff has no case that defendant was
residing in another building during 1980-84, it can
only be presumed, as has been rightly accepted by
courts below, that it was in respect of the plaint
schedule building. If that be so, Ext.B2 shows
that the defendant was residing in that house and
then the house number was IV/63. Ext.B1 voters
list for the year 1964 shows that defendant was a
voter of the very same house. It therefore
conclusively prove that atleast from 1964 onwards
defendant has been residing in that house. When
there are only two cases, one for the plaintiff
that the building was entrusted in 1970 as per an
oral lease, and the other for the defendant that it
was constructed by him in 1960 and it is proved
that defendant has been residing therein even
S.A.84/93 9
during 1964, case of the plaintiff has necessarily
to be disbelieved. Courts below on preponderance of
probability accepted the case of the defendant.
Exercising the powers under section 100 of the CPC,
this court cannot interfere with that finding of
fact. If that be so, it is proved that the house
has been constructed by the defendant in 1960 and
he has been residing therein since then.
7. Then the only question is whether defendant
is a kudikidappukaran as found by the Land Tribunal
and the courts below.
8. Sub section 25 of Section 2 defines
“kudikidappukaran”. Clause (a) deals with
homestead and clause (b) with hut. As per the
definition a kudikidappukaran means, a person who
has neither a homestead nor any land exceeding in
extent three cents in any city or major
municipality or five cents in any other
municipality or ten cents in any panchayat area or
township, in possession either as owner or as
tenant, on which he could erect a homestead. He
S.A.84/93 10
comes under clause (a)if he has been permitted
with or without an obligation to pay rent by a
person in lawful possession of any land to have the
use and occupation of a portion of such land for
the purpose of erecting a homestead. He comes
under clause (b), if he has been permitted by a
person in lawful possession of any land to occupy
with or without an obligation to pay rent, a hut
belonging to such person and situate in the said
land. Therefore if the defendant has neither a
homestead nor any land exceeding the extent
provided under the section, in his possession
either as owner or as tenant where he could erect a
homestead and he has been permitted by a person in
lawful possession of the land to have the use and
occupation of a portion of such land for the
purpose of erecting a homestead is a
kudikidappukaran. “Homestead” has been defined
under Explanation II of sub section (25) as means,
unless the context otherwise requires, any dwelling
house erected by the person permitted to have the
S.A.84/93 11
use and occupation of any land for the purpose of
such erection and includes any such dwelling house
reconstructed by the kudikidappukaran in accordance
with the provisions of Section 79. The cost of
construction of not exceeding 750/- rupees at the
time of construction and the yield of monthly rent
not exceeding 5/- rupees as provided under sub
clause (i) and sub clause (ii) of sub clause (a) of
Explanation II is relevant only in respect of a
hut as contemplated under clause (b) of Sub section
(25). Therefore for the reason that the cost of
construction of homestead exceeds Rs.750/- and the
yield of monthly rent at the time of construction
exceeds Rs.5/- the claim cannot be disallowed.
Therefore on the basis of the report of the Revenue
Inspector estimating the cost of construction at
Rs.2000/-, plaintiff is not entitled to contend
that defendant is not a kudikidappuran. Moreover,
the cost of construction estimated by the Revenue
Inspector was on the basis that the building was
constructed in 1970. When the building was
S.A.84/93 12
constructed a decade earlier, the cost of
construction as estimated by the Revenue Inspector
can only be rejected. Hence on that basis , it
cannot be held that defendant is not a
kudikidappukaran. The courts below rightly
appreciated the facts and held that defendant is a
kudikidappukaran. I find no reason to interfere
with that findings.
The appeal is bereft of merits and it is
dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
———————
W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006