RANGA PAI Vs. SPL TAHSILDAR LR VYPEEN

JUDGEMENT

(1.) The points that arise for consideration in this case, are: (1) A person in occupation of a building who contested a petition for eviction under S.11 of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 contending that as tenant be was not liable to be evicted and who raised the plea that be was a kudikidappukaran only in the execution proceedings, whether can maintain an application for purchase of kudikidappu under S.80B of the Kerala Land Reforms Act 1 of 1964 and (2) where permissive occupation of the building is not in dispute, can there be a question of invoking Explanation.2A to S.2(25) of the Kerala Land Reforms Act 1 of 1964

(2.) The petitioner, the owner of a building in the Corporation of Cochin in the possession of the 2nd respondent as its tenant, filed a petition for eviction under S.11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 1964, before the Rent Control Court, Cochin in 1979. The 2nd respondent tenant contested the matter. He also filed a petition before the Accommodation Controller under S.17 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court allowed eviction. The 2nd respondent tenant challenged the order of eviction in appeal and revision but without success. When the order for eviction was sought to be executed, the 2nd respondent raised a contention that he was a kudikidappukaran and hence could not be evicted. This contention was rejected by the Execution Court. From that order, the 2nd respondent filed a revision before the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965. Thereafter, the 2nd respondent filed an original suit before the Munsiff's Court, Cochin and sought an injunction against the execution of the decree. It was then that the 2nd respondent filed an application under S.80B of the Kerala Land Reforms Act 1 of 1964 before the 1st respondent Special Tahsildar (LR), Vypeen for purchase of kudikidappu. The 1st respondent granted an interim injunction against eviction of the 2nd respondent from the building. The petitioner contested the injunction matter by filing a counter affidavit. After hearing the counsel on both sides, the 1st respondent made the injunction absolute by Ext. P-5 order holding:

(3.) The petition for eviction was filed before the Rent Control Court long after the Kerala Land Reforms Act 1 of 1964 was amended by Act 35 of 1969 and Explanation IIA was inserted in S.2(25) defining kudikidappukaran, by Act 17 of 1972. The definition of 'tenant' in the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 excludes a kudikidappukaran as defined in the Kerala Land Reforms Act 1 of 1964. The 2nd respondent did not raise a contention before the Rent Control Court that he was a kudikidappukaran. On the other hand, he contested the petition for eviction as a tenant. He also filed an application before the Accommodation Controller under S.17 of Act 2 of 1965. This only a tenant as defined in Act 2 of 1965 could do and a kudikidappukaran, at any rate, could not, as the definition of 'tenant' does not include a kudikidappukaran. Having done all these, now it is too late in the day for the 2nd respondent to contend that he is a kudikidappukaran. He is barred by constructive res judicata. He is also estopped from raising a contention of kudikidappu now, in view of the fact that he took a plea quite inconsistent with this before the Rent Control Court. A party cannot approbate and reprobate and cause detriment to his opponent. In this case, the same transaction, namely, the lease of the building in question by the petitioner to the 2nd respondent was the subject matter of the litigation before the Rent Control Court and is the subject matter of the litigation in the application for purchase of kudikidappu pending before the Special Tahsildar (LR). The parties are also the same. So, when the 2nd respondent elected not to raise the contention regarding kudikidappu before the Rent Control Court, he missed the bus.