IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 195 of 1996()
1. THOMAS P.CHACKO@ TOMY
... Petitioner
Vs
1. AMMINI VELAYUTHAN
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.G.UNNIKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/07/2010
O R D E R
P.BHAVADASAN, J.
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SA No.195 of 1996-F
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Dated 8th July 2010
Judgment
The plaintiff in OS No.558/78 before the
Munsiff’s Court, Kottayam, is the appellant. During the
pendency of the appeal, both the respondents died
and their legal heirs have been brought on the party
array as respondents 3 to 7.
2. According to the plaintiff, the plaint schedule
building was let out to the defendant as per document
dated 1.2.1975 at a monthly rent of Rs.25/-. Rent was paid
only till 1979 and thereafter it was kept in appears. In spite
of lawyers’ notices, rent was not paid and vacant
possession was not given. Hence the suit.
3. The defendant resisted the suit, taking the
contention that she is entitled to kudikidappu right under
the provisions of the Land Reforms Act. She also disputed
the lease arrangement pleaded by the plaintiff. It appears
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that the issue regarding kudikidappu was referred to the
Land Tribunal by the Munsiff’s Court, Kottayam. The Land
Tribunal returned the matter, finding that the defendant is
not entitled to kudikidappu rights. Accepting the said
finding, the suit was decreed.
4. The defendant carried the matter in appeal as
AS No.399/1986. The Appellate Court, on an evaluation of
the materials before it, disagreed with the finding of the
Land Tribunal and held that the defendant is entitled to
kudikidappu rights. Accordingly, the appeal was allowed
and the suit was dismissed. The said Judgment and decree
are assailed in this appeal.
5. The only question that arises for consideration
in this appeal is whether the defendant in the suit is entitled
to kudikidappu rights.
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6. The following questions of law are seen
framed in the Second Appeal :
“(a) Is not the lower appellate court in serious
error in setting aside the order of the Land
Tribunal on the sole ground that it conducted a
local inspection of the plaint schedule building
especially in the light of rule 137 of the Kerala
Land Reforms (Tenancy) Rules 1970 and in the
light of the fact that local inspection was not the
sole ground for arriving at the decision and it
was done only to assess and verify the evidence
on record ?
(b) Is not the lower appellate court in serious
error in holding that the defendant is a
kudikidappukari of the plaint schedule building
which is only a portion of a larger building ?
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(c) In the light of the specific undertaking by the
defendant before the appellate court on the first
occasion to take out a commission after remand,
and in the light of the refusal of the defendant to
do so, is not the appellate court in serious error
in not drawing abuse inference against the
defendant ?
(d) Is not the lower appellate court in serious
error in relying on a portion of the Revenue
Inspector’s report to find that the plaint schedule
building was in existence from 1950 onwards in
view of the fact that the said report cannot be
relied upon.
(e) Is not the lower appellate court in
serious error in holding that Ext.A1 relates
to the plaint schedule building and the rent
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shown therein can be taken as the rent of the
building in view of the fact that Ext.A1 is for the
year 1955-56 whereas entrustment of the
building even according to the defendant is only
in 1967.”
7. The learned counsel for the appellant pointed out that
the lower Appellate Court was not justified in taking a
different view from that of the Land Tribunal. The solitary
item of evidence relied on by the lower Appellate Court is
Ext.A1. There is nothing to show that the said document
relates to the building in question and the lower Appellate
Court has omitted to take note of various facts which would
conclusively show that the defendant is not entitled to the
benefit under the Kerala Land Reforms Act. According to
the learned counsel, there was ample evidence to show
that the original building was pulled down and a new
structure had been put up in its place, which fact has not
been noticed by the lower Appellate Court.
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8. The learned counsel drew the attention of this
Court to an earlier order of remand by the District Court to
the Trial Court wherein the defendant had undertaken to
take out a commission to value the structure and that had
not been done by the defendant. Therefore, the benefits
under the Kerala Land Reforms Act should not have been
extended to the defendant.
9. The learned counsel for the respondent on
the other hand, pointed out that the lower Appellate Court
has considered the matter in considerable detail and after
analysing the evidence on record, has come to the
conclusion that the structure in question is a hut, falling
within the definition of S.2(25) of the Land Reforms Act and
therefore, the defendant is entitled to kudikidappu rights.
10. The lower Appellate Court has analysed the
evidence on record and has come to the conclusion that
Ext.A1 produced by the defendant before the Land Tribunal
related to a building involved in this proceedings and the
rent shown there was only Rs.2/- per month. It is also
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pointed out that even though the landlord claimed that the
earlier building had been pulled down and a new building
had been put up, he adduced no evidence in that regard.
11. Attention of this Court was also drawn to the
fact that even though the report of the Revenue Inspector
was found to be unacceptable, it opined that the structure
is more than 30 years old. Viewed in that context, it can be
easily seen that ext.A1 relates to the building involved in
this proceedings. The evidence of RW2 would clearly show
that the person by name Kunja, shown in Ext.A1 had been
in occupation of the premises at the relevant time. The
landlord had miserably failed to show that the defendant
was in occupation of a new structure. Accordingly, it was
contended that no grounds were made out to interfere with
the judgment of the lower Appellate Court and that the
appeal was without merits.
12. There appears to be considerable force in
the contentions taken by the learned counsel for the
respondents. True, it was solely based on Ext.A1 document
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that the lower Appellate Court has come to a conclusion
that the defendant is entitled to kudikidappu rights. It is
also true that there was an earlier order of remand by the
first Appellate Court to the Munsiff’s court and it is seen
observed therein that the defendant had undertaken to take
out a commission to ascertain the value of the structure. It
is not complied with.
13. It is seen from the records that Ext.A1 was
among the records even at the time of passing the earlier
order of remand. S.2(25) of the kerala Land Reforms Act
reads as follows:
“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
and –
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(a)who 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; or
(b) who 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; and “kudikidappu” means the land and the
homestead or the hut so permitted to be erected
or occupied together with the easements
attached thereto.”
A reading of the above provision shows that a structure
qualifies to be a hut if at the time of construction, its cost of
construction did not exceed Rs.750 or the structure, at the
time of construction, yielded a monthly rent not exceeding
Rs.5/-.
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14. The main contention taken by the appellant
before this Court is that there is nothing to show that Ext.A1
relates to the building in question. It does not appear to be
correct. The lower Appellate Court has considered this
aspect in great detail and on the basis of the oral evidence
adduced by the parties, has found that Ext.A1 relates to the
period 1955-56.
15. On going through the evidence, it is seen
that one Kunja had occupied the premises at one point of
time. That would be clear from the reading of the evidence
given by the witness examined by the appellant. It is
significant to notice that the name of Kunja appears in
Ext.A1 also.
16. However, it is seen that the lower Appellate
Court had come to the conclusion that the structure would
fetch only Rs.2/- per month based on the entry in column
No.7 of Ext.A1. That column relates to tax for general
purpose. It does not appear that Rs.2/- shown in column
No.7 relates to the rent that the structure could fetch per
SA 195/96 11
month. However, in column No.6 of Ext.A1, the annual
value is shown as Rs.60/-. That obviously must be the
annual rental value, which means the monthly rent is
Rs.5/-. If that be so, the structure is a hut, coming within
the definition already quoted above.
17. It has come out from the evidence of AW1
before the Land Tribunal that a portion of the structure
occupied by her husband who had taken it on rent initially,
had been demolished for widening a road and there is no
suggestion to AW1 that either the old structure had been
pulled down or that she was occupying a new structure.
18. Even though the appellant has a case that
there were several structures in the property, he had not
been able to substantiate it with acceptable evidence.
19. Merely because the respondent herein did
not take up a commission to have the structure valued, it
does not mean that she should be deprived of the benefit
under the Land Reforms Act, if in fact, she was entitled to
the same. The evidence also discloses that the name
SA 195/96 12
entered in Ext.A1 in Column No.4 showing owner’s name,
is none other than that of the father of the appellant. The
lower Appellate Court has considered the oral as well as
the documentary evidence in detail and has come to the
conclusion that the defendant in the suit is entitled to claim
kudikidappu rights.
20. The appellant has not been able to show that
the findings of the courts below are either perverse or is not
warranted by the materials available on record. Under
S.100 of CPC, unless it is shown that the findings are
perverse or was totally unwarranted by the evidence on
record, no interference is called for with the judgments and
decrees of the courts below. No substantial questions of
law arise for consideration in this appeal. The appeal is
without merits and it is accordingly dismissed. There will
be no order as to costs.
P.BHAVADASAN, JUDGE
sta
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