MARIAM Vs. OUSEPH XAVIER

JUDGEMENT

(1.) THIS appeal relates to a hut, a few hundred rupees in value but its decision has been for me an unhappy experience in hesitancy and conflict of thought. It is inevitable that laws made under pressure of social compulsions, illustrated by the present case relating to protection of kudikidappu, may not neatly fit into the established scheme of property rights based on time-honoured concepts and the resolution of this incongruity needs an understanding of the dynamics of social change. With this pardonable preface, let me state the facts of the case. The appellants claim to be kudikidappakarans within the meaning of S. 2 (25) of the Kerala Land Reforms act, 1963 (hereinafter referred to as the Act) and consequential immunity from eviction by virtue of S. 75 of the said Act, the first appellate court having decreed eviction in reversal of the trial court's dismissal of the suit.

(2.) THE story may have to be narrated in some detail before the legal issues canvassed before me can be properly appreciated. THE suit property 32 cents in extent is part of a larger 75 cent plot. THE 1st defendant was the lessee of the plaint land where she was living with her husband and children in a but thereon. THE other portions of the larger area were in the possession of two tenants under the jenmi. THE plaintiff, who got an assignment of the entire 75 cents from the jenmi, a Mana, secured khas possession of the land outstanding with the tenants except the 1st defendant and we are not concerned with that area. However, the 1st defendant said her leasehold to one George in 1123 as per Ext. P3 and gave possession of the land, but took two months' time to hand over possession of the building. THE relevant recital in ext. P3 runs thus: THE period of two months passed, but the 1st defendant did not hand over the possession. George, the vendee under Ext. P3, executed a release deed in favour of the plaintiff. Ext. P5 dated 29 41948, whereby the plaintiff came into possession of 251/2 cents comprised in the leasehold right of the 1st defendant, the building and the surrounding space continuing with the 1st defendant and her children, who are defendants 2, 3 and 4. THE grievance of the plaintiff is that the defendants are interfering with his enjoyment of the land and are refusing to vacate the building.

(3.) 1 may begin by extracting S. 2 (25) of the Act as it now stands: "'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 be could erect a homestead and (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 but belonging to such person and situate in the said land; and 'kudikidappu' means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto: Provided that a person who, on the 16th August, 1968, was in occupation of any land and the homestead thereon, or in occupation of a but belonging to any other person, and who continued to be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, shall be deemed to be in occupation of such land and homestead, or hut, as the case may be, with permission as required under this clause. "