IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 30 of 2006()
1. P.THANKAMONY, MANKULATHU VEEDU,
... Petitioner
Vs
1. PONNAMMA, MANKULATHU VEEDU,
... Respondent
2. VISWANATHAN, MANKULATHU VEEDU,
3. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.SREEKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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C.R.P.NO.30 OF 2006
===========================
Dated this the 24th day of January, 2007
O R D E R
Petitioner is the applicant before Land
Tribunal, Thiruvananthapuram and appellant before
Appellate Authority(L.R.), Alappuzha. Respondents
1 and 2 are respondents before the Land Tribunal
and Appellate Authority. Petitioner filed
O.A.247/93 before the Land Tribunal for purchase
of kudikidappu right claiming that she is a
kudikidappukari. Land Tribunal holding that
petitioner did not adduce any oral or documentary
evidence to prove that she has been in possession
of the building prior to 1.4.1964 found that she
is not entitled to the kudikidappu right.
Petitioner challenged that order before Appellate
Authority (LR), Alappuzha in A.A.35/03. The
Appellate Authority after reiterating the
contentions raised by both the petitioner and
respondents dismissed the appeal finding that on
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going through the lower court records and hearing
their counsel there is no merit in the appeal. This
petition is filed challenging that order under
section 103 of Kerala Land Reforms Act.
2. Learned counsel appearing for petitioner
and respondents were heard.
3. Learned counsel appearing for petitioner
argued that both the Land Tribunal and the
Appellate Authority did not consider the
entitlement of petitioner for kudikidappu right
and instead dismissed the application for the sole
reason that petitioner did not establish his
possession prior to 1.4.1964 and therefore
petitioner is not entitled to kudikidappu right.
The question whether a person in possession of a
hut who was put in possession of that hut even
after 1.1.`70 is entitled to claim kudikidappu,if
all the other ingredients are established, is no
more res integra, in view of the decision of this
Court in Vidhyadharan v. Sivadas (2001(2) KLT 605).
Therefore the very basis of rejection of
kudikidappu right claimed by petitioner by the
Land Tribunal and the Appellate Authority is
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unsustainable.
4. Then the question is whether the petitioner
is entitled to kudikidappu right?. This question
was not independently considered by either the Land
Tribunal or the Appellate Authority. Learned
counsel appearing for petitioner argued that even
if the petitioner did not succeed in establishing
his case that he has been put in possession of the
land by the mortgagee, it is the specific case of
respondents, in O.S.2557/03 filed by them for
redemption of the mortgage, where petitioner was
impleaded as eighth defendant, that petitioner was
inducted into possession by the mortgagee. It was
argued that in that case if petitioner is not
having any other land, where he could erect a
homestead and the building is a hut, being its cost
of construction less than Rs.750/- or rental value
at the time of construction less than Rs.5/-,
being a person permitted to occupy the building by
the mortgagee a person in lawful possession of the
land she is entitled to claim kudikidappu and
this question was not considered by the Land
Tribunal or Appellate Authority and so the case has
CRP 30/06 4
to be remitted back to the Land Tribunal for
considering the question afresh. Learned counsel
appearing for respondents vehemently argued that
petitioner has no specific case whether she was
permitted to occupy the land or hut or whether she
constructed the homestead and a decree for
redemption and recovery of possession was already
passed in O.S.2557/93 and in such circumstance,
case need not be remanded and on the materials this
court can find that petitioner is not entitled to
kudikidappu right.
5. True, in the application filed before the
Land Tribunal for purchase of kudikidappu right,
petitioner did not specifically plead with regard
to either the entrustment or whether entrustment
was of the land and she constructed the homestead
or she was entrusted with the hut. What was
contended in the petition was that she has been in
possession of the hut since 1965 and its cost of
construction was Rs.200/- and there is no liability
to pay rent. Learned counsel appearing for
respondents also pointed out that in the written
statement filed before Munsiff Court in
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O.S.2557/93, case of the petitioner was that
mother of respondents permitted petitioner to put
up a hut in the plaint schedule property on 16.8.65
and if so, it could only be a homestead and the
case could only be that petitioner was put in
possession of the land by mortgagor and not by
mortgagee. Learned counsel appearing for petitioner
pointed out that even before Appellate Authority,
as seen from the order, what was contended by
respondents was that mortgagee put petitioner in
possession of property and even if petitioner did
not establish the claim that she was entrusted with
the land and she constructed a homestead, the
case pleaded by respondent enables petitioner to
claim that admitted facts satisfies the definition
of kudikidappukaran as provided under sub section
(25) of Section 2 and therefore petitioner is a
kudikidappukari. On hearing both the counsel, it
is clear that the question whether petitioner is a
kudikidappukari, as defined under sub section (25)
of Section 2, is to be considered first by Land
Tribunal. As the Land Tribunal and the Appellate
Authority did not consider this question, that
CRP 30/06 6
question cannot be decided in this revision for the
first time in exercise of the revisional powers of
this court. The order of Appellate Authority and
the Land Tribunal are set aside. O.A.247/93 is
remanded to the Land Tribunal, Thiruvananthapuram
for fresh disposal in accordance with law. The
Land Tribunal is directed to dispose of O.A.247/93
as expeditiously as possible, at any rate, within
four months from the date of receipt of records.
The parties are entitled to adduce further
evidence, if they chose.
Civil Revision Petition is disposed as above.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006