MOIDEENKUKTTY Vs. GOPALAN

JUDGEMENT

(1.) As a common question regarding the interpretation and scope of Explanation IIA to S.2(25) of Act 1 of 1964 as amended upto date arises for consideration in these cases, these cases have been referred for decision by a Division Bench. The facts in CRP. 360 of 1977 may be stated first. The respondent claiming to be a kudikidappukaran applied for purchase of the kudikidappu of a dwelling house in his occupation. The petitioner resisted that claim. According to him one Thuloora took the building under a registered cooly chit in the year 1945. On his death his son, Parayan, was in occupation and" he filed an application for registration as a kudikidappukaran. That application K A. 999 of 1964 was dismissed in 1967 as he was found to be in possession of other properties. After that the respondent who is the son of Parayan, set up kudikidappu right and filed an application for purchase. According to the petitioner it is to defeat or to get over the order passed in application K. A. 999 of 1964 that this application has been filed by the respondent in collusion with his father and his claim cannot be allowed. The respondent's case is that he is in occupation of the dwelling house from a date prior to 16th August 1968 and he has no building or land of his own to erect a homestead and hence he is a kudikidappukaran under Explanation IIA to S.2(25) of Act 1 of 1964 as amended up to date. This claim of the respondent was accepted by the Land Tribunal and confirmed by the Appellate Authority. It is against this, this Civil Revision Petition has been filed.

(2.) The facts in C. R. P. 2711 of 1978 are the following: The petitioner claiming to be a kudikidappukaran applied before the Land Tribunal to purchase the kudikidappu under S.80B of the Kerala Land Reforms Act. The respondent disputed the status of the petitioner as a kudikidappukaran by contending that the hut in question was entrusted to one Govindan Master with a liability to pay a monthly rent of Rs. 20/- and the cost of construction of the building will exceed Rs. 2,000/- and the rent will also be more than Rs. 15/- per month. The Land Tribunal went into the matter and held that the petitioner and his family have been residing in the house from 1962 onwards, that the building is a hut and so Explanation.IIA to S.2(25) of the Act gives the petitioner the status of a kudikidappukaran. The Land Tribunal also found that this Govindan Master was only a mediator for fixing the house on rent for the petitioner and the petitioner alone was in possession throughout. On appeal by the respondent the Appellate Authority allowed the appeal and dismissed the purchase application holding that though the petition schedule building was in the occupation of the petitioner from 1962 onwards, he has come into possession of the building only under the said Govindan Master. Consequently the petitioner is not a kudikidappukaran. The petitioner came up in revision before this Court and this Court by order dated 13th June, 1977 set aside the decision of the Appellate Authority and remanded the case to that Authority for fresh disposal. This Court in the order of remand found that the building is a hut as defined in the Act and that the petitioner was in occupation from 1962. It was further observed that the question whether a tenancy arrangement was entered into by Govindan Master or Govindan Master acted only as a mediator should be decided in the light of all the circumstances and evidence, in the case. After remand the court has again allowed the appeal and dismissed the purchase application. According to the Appellate Authority, Explanation IIA to S.2(25) raises only a presumption in favour of the petitioner But this is not an absolute presumption which will preclude the land holder from proving that the initial occupation was without permission and as it has been proved in this case that the petitioner has entered possession without the permission of the respondent he is not entitled to the benefit of Explanation IIA. This is challenged in this revision petition.

(3.) To appreciate the rival contention in both cases it is first necessary to read S.2(25) and Explanation IIA. They read as follows:-