KUNJAN VAVA Vs. PAPPY AMMA AMMUKUTTY AMMA

JUDGEMENT

(1.) The applicant for purchase of kudikidappu right under the Land Reforms Act (Act 1 of 1964) is the revision petitioner. The respondents are the landholders of the property in which kudikidappu is situate. In the application the applicant stated that this kudikidappu is situate in Survey 55/4 comprising 1 acre 64 cents. This property belongs to respondents 3 in number. The respondents are together stated to be entitled to a total extent of 2 acres 57.750 cents of land and they are shown in the relevant columns of the application among the category of persons entitled to more than 2 acres and less than 3 acres of land, The respondents contended that they have only 2 acres 57.750 cents of land on the whole, that they are tenants in common and therefore each will be entitled to less than 1 acre and they proposed to apply before the Government for acquisition of other lands for shifting the kudikidappu from the property where it is now situate. The Land Tribunal, without taking any evidence, allowed the application stating that the respondents have not let in any evidence to prove that the applicant is not a kudikidappukaran. This is not the point in controversy. The Tribunal erred badly. On appeal by the respondents the Appellate Authority came to the conclusion that as each of the respondents is entitled to only less than 1 acre, they are entitled to apply to the Government under S.75(3) of the Land Reforms Act for acquiring other lands for shifting the kudikidappu and as it was stated that an application for acquisition has been filed on 16-12-1971 before the Government the application for purchase of a kudikidappu was not maintainable In that view the application was dismissed. It is against that that this revision petition has been filed.

(2.) Two contentions are raised by the counsel for the revision petitioner. The first contention is that as the respondents are together entitled to more than 1 acre the applicant is entitled under S.80A to apply for purchasing the kudikidappu. In the application the applicant has stated that the respondents together are entitled to 2 acres 57.750 cents. They are not stated as constituting a family. They do not form an association and they do not also form a body of individuals. They only constitute coowners in respect of this 2 acres 57.750 cents. So they do not together come under any category included in the definition of 'person' in S.2 Clause.43 or the Land Reforms Act. As per law each, will be entitled to hold only a fraction of this area and in the absence of any evidence or circumstance to show that they hold in different fractions each will be taken as entitled to only one third of this extent. That means each will be entitled to less than 1 acre. At any moment they may partition and take a particular portion of the property exclusively. Each coowner will be a separate person entitled to such rights as are allowed to him under S.75(3). In such circumstances it cannot be said that each is entitled to more than 1 acre. Under S.75(3) if the landholder in whose land there is a kudikidappu is entitled to only less than 1 acre of land and wants to put up a building in the property he can apply to the Government to acquire other land for shifting the kudikidappu and under S.80A sub-s.2 it is stated that kudikidappukaran shall be entitled to apply for purchase of the kudikidappu only if the landholder does not apply to the Government under sub-s.3 of S.75 for the acquisition of a land to which the kudikidappu may be shifted within a period of two years from the commencement of the Land Reforms (Amendment) Act of 1969. It is also provided in the proviso to that sub-section that if such application under S.75(3) is rejected or if such person failed to pay the expenses for shifting the kudikidappu then also the kudikidappukaran can apply for purchasing the kudikidappu. This right of a person, who has only less than one acre, to apply to Government for acquisition of another land to which the kudikidappu may be shifted being a statutory right, cannot be defeated by the omission of the other coowners either to join in the application to Government or to comply with the other requirements of S.75(3). In this case the application for purchase was filed before the expiry of 2 years and during the pendency of the appeal and before the expiry of 2 years one landholder, it is stated, has applied for acquisition of another land to which the kudikidappu may be shifted. Therefore, the contention of the revision petitioner that he is entitled to apply to purchase the kudikidappu even before the result of the application filed by the landholder before the Government is known cannot be sustained.

(3.) The second contention raised by the revision petitioner is even assuming that the application for acquisition has been made to the Government to acquire a land to which the kudikidappu may be shifted, that by itself cannot be a bar to the maintainability of the application filed earlier. This contention appears to be correct. Under S.75(3) when a landholder applies to the Government to acquire a land to which the kudikidappu may be shifted there is no provision for giving a notice of such an application to the kudikidappukaran. The rules also do not provide for the issue of any notice to the kudikidappukaran for such an application. Under S.80A(2) a kudikidappukaran is entitled to purchase the kudikidappu if the landholder's application for acquisition is rejected or if such person fails to pay the expenses for shifting the kudikidappu as required by sub-s.3(c) of S.75. So, the petitioner is entitled to contend that his application should be kept pending until the fate of the application alleged to have been made by one landholder to the Government is known.