SARADA BAI Vs. SURESH CHANDER CHAWHAN

JUDGEMENT

(1.) WHEN this second appeal came up for admission, I heard the learned counsel for the appellant as well as the learned counsel appearing for the 1 st respondent, who took notice in the appeal. This second appeal is filed by the 1st defendant in a suit for redemption of mortgage. The case of the plaintiff is that he executed a mortgage in respect of the plaint schedule property for Rs. 3,000/- in favour of one Thankappan Aasari in 1965. The defendants took assignment of the mortgage right in 1969. Thereafter, the plaintiff executed a purakkadam for Rs. 500/- from the defendants and extended the period for mortgage for one year. Subsequently, another loan of Rs. 3,000/-was also taken by the plaintiff from the 1st defendant by executing purakkadam deed No. 1907 of 1972 and when the plaintiff requested for redemption of mortgage, the defendants did not comply with the request and therefore the suit was filed.

(2.) THE 1st defendant in the written statement contended that the plaintiff had agreed to sell the property to the defendant for a value of Rs. 5,000/- per cent for the land and Rs. 10,0007- for the building. THE defendant had effected improvements to the building by spending Rs. 15,000/ -. It is also contended that necessary steps will be taken for getting specific performance of the contract of sale. THE defendant is also entitled to kudikidappu right in the plaint schedule property.

(3.) IN this second appeal, the learned counsel for the appellant strenuously argued that the appellate court should have considered the claim of kudikidappu also. It is also contended that the appellate court has not granted interest on the value of improvements and therefore the judgment and decree of the lower appellate court have to be set aside. The learned counsel for the respondent on the other hand submitted that when the counsel for the appellant had limited his arguments in the lower appellate court on the question of value of improvements only and the same is recorded by the appellate court, the appellant cannot be heard on any other point raised in the Memorandum of Appeal. He relied on the decision of the Supreme Court in bhavnagar University v. Palitana Sugar Mill (P) Ltd. ( (2003) 2 SCC 111) and also the decision of the Supreme Court in Daman Singh v. State of Punjab (AIR 1985 sc 973 ). IN both the decisions, it is " stated that the remedy of the appellant in such cases will only be to file proper application before the court before which the concession was made and the correctness of the matter recorded by the court cannot be considered in appeal. It is also pointed out by the learned counsel for the respondent that the appellant had confined the arguments on the question of value of improvements. It is pointed out that the case of the appellant was one of agreement for sale and the defendant made advances to the plaintiff on various occasions. It is also pointed out that what was mortgaged was a terraced building with water and electricity connection. Even the value assessed by the defendant for the purpose of alleged agreement for sale of the building is Rs. 10,000/-whereas the cost of construction of the building for a kudikidappu should not exceed Rs. 750/ -. It is no doubt true that it is not for this Court to consider the question whether the building is a but or not and the competent authority is the Land Tribunal. The 1st defendant did not take part in the proceedings before the Land Tribunal and the Land Tribunal was helpless to render a finding in the absence of any evidence on the side of the 1 st defendant. According to the learned counsel, the value of the building should have been got ascertained to find whether the building qualifies the definition of a hut. That argument is without any merit. The definition of kudikidappukaran under S. 2 (25) of the Kerala Land Reforms Act contains two parts. The first is the person claiming kudikidappu should not have any land in excess of three cents in Corporation/ Municipality area or 10 cents in a Panchayat and second is that he has been permitted to occupy a hut. Therefore, unless the 1st defendant adduces evidence to satisfy the definition of kuidikidappukaran, the Land Tribunal cannot enter a finding. The 1st defendant did not make any attempt to adduce any evidence before the Land Tribunal in that respect. Therefore, it is not open to the appellant now to contend that the Land tribunal did notdiseharge its duties properly. The learned counsel for the appellant also relied on the decision of the Supreme Court reported in Victoria v. K. V. Naik ( (1997) 6 SCC 23 ). IN Victoria's case (supra), the Supreme Court has held that if the plea of kudikidappu right had not been raised and rejected, it would operate as resjudicata on the principle of might and ought. If it is taken and rejected, it operates as resjudicata and the same cannot be raised in execution. That decision will not in any way help the case of the appellant. On the other hand, that decision will help the respondents in as much as the Supreme Court has observed as follows: "after all, the mortgagee-money lender comes into possession of the property as mortgage and always remains as mortgagee unless limitation snaps off the link. He cannot be permitted in good sense of law to eat away the cake as kudikidappu. " IN this case, the definite contention of the defendants is that he wanted to purchase the land and building at Rs. 5,000/- per cent for the land and Rs. 10,000/- for the Building. IN such a situation, it is impossible to think that he can also claim kudikidappu right because he was originally a mortgagee and the 1st defendant was advancing further amounts to the mortgagor.