THRESIA & OTHERS Vs. ITTOOP

JUDGEMENT

(1.) THE defendant revision petitioner was a Kudikidappukaran in a property purchased by the plaintiff -respondent. The plaintiff sued for an injunction restraining the defendant -kudikidappukaran from enlarging or altering the existing building and other reliefs. A temporary injunction was granted. On the defendant's application, the order was modified and he was allowed to repair the ceiling and thatch the building. Another application was filed by him subsequently stating that the building was so old and damaged that it could not be repaired and praying that he may be permitted to erect a new building of the same perimeter as the existing one. The trial court allowed the application, but on appeal the order was reversed by the District Judge. The defendant has therefore filed this revision petition. The reason which appears to have weighed with the lower appellate court was that since the date of the trial court's order, the Kerala Agrarian Relations Act, IV of 1961, was passed which enabled the landlord to evict the kudikidappukaran in case he required the land for his own use. All that he has to do in such a case is to provide another site, five cents in extent, within one mile of the present site and to pay the cost of the building and reasonable cost of shifting the homestead to the new site. It was stated that this application was filed after the landlord issued a notice demanding the shifting of the homestead to a new site. The respondent wants to exercise this right and secure possession of the site of the existing building on payment of its value and cost of removal. If the kudikidappukaran is allowed to construct a new building now, the value of that will normally have to be paid by the landlord in the event of eviction. The safeguard imposed by the trial court, namely, that the perimeter of the building should be the same, is not of much use as a multi -storied building can be erected on the site, which the owner will ultimately be bound to pay for.

(2.) IT was urged on behalf of the petitioner that under Section 40 clause (2) of the Act he had the right to "maintain, repair and rebuild the homestead erected by him without exceeding the dimension of the original homestead at his costs". The argument was that the word "rebuild" indicated that the old building should be demolished and a new one erected in its place. It is true that he can rebuild the homestead but such building must be similar in all material respects to the old one ; otherwise there is no point in the use of the word "rebuild" in the section. Moreover, the word 'dimensions' means something more than the perimeter ; it should include height also. All that he can be permitted to do is to rebuild the existing building so that the new structure would be within the dimensions of the present one, and it should be rebuilt using materials such as those used for the existing building. This is not what he wants. The lower appellate court was therefore justified in reversing the order of the trial court. Counsel for the petitioners has filed a statement signed by the petitioners and another one signed by the second defendant who is not a party to this revision petition, that in case permission to rebuild is granted, the defendants will not claim anything more than the value of the existing building in the event of eviction i.e., the value of the existing building as determined by the court in O. S. No. 312 of 1961 of the Ernakulam Munsif's Court. A commission was issued in that suit for assessing the value of the building and a report has been filed. The respondent states that no objections have been filed about the valuation made by the commissioner. If no objections have been filed, that is a matter which the court will take into consideration in deciding this question in O. S. No. 312 of 1961. In the event of eviction, the defendants will not be entitled to anything more than the value of the existing building as determined by the Court in O. S. No. 312 of 1961. Subject to this direction the petitioners are allowed to rebuild the house. The Civil Revision Petition is allowed as indicated above. No costs.