VASTIAN LOUISE Vs. ANDREWS

JUDGEMENT

(1.) THIS original petition is filed by 1st Respondent in O. A. No. 65 of 1972 on the file of the Principal Land Tribunal. Kanjikuzhi. The petitioner is a kudikidappukaran in the property belonging to the 1st Respondent in this original petition. The 1st respondent filed a suit to get the kudikidappu shifted to another property belonging to the 1st respondent as provided for in Section 75 Of the Land Reforms act (Act 1 of 1964 ). Pending that suit the Land Reforms Act was amended by Act 25 of 1971. As per this amendment the power to decide the question of shifting the kudikidappu was vested with Land Tribunals constituted under Section 7 of the amended Act and therefore the suit was transferred to the Tribunal under Section 23 of the said Act On the basis of this provision the suit was transferred to the tribunal. In the proceedings the petitioner's contention was that the landlord does not require the property in which the kudikidappu is now situate for any purpose mentioned in the Act, and secondly, he has got some interest in the property on the basis of the Udampady executed between him and the 1st Respondent in 1962. As per that Udampady the petitioner is entitled to the usufructs of two cocoanut trees and also a right to set 30 cocoanuts from the compound during every cropping and also to take all the husks of the cocoanuts plucked during the best cropping in an year. This right, it is alleged, cannot be taken away by the proceedings for shifting the kudikidappu and if for any reason the kudikidappu has to be shifted he is entitled to the value of the homestead and also Rs. 300/- as reasonable cost of shifting the kudikidappu. The Land Tribunal negatived these contentions. It was found that the land owner is entitled to have the kudikidappu shifted to another property. The right which the kudikidappukaran was enjoying was held to be a right which was incidental to or customary to his occupation of the homestead as a kudikidappukaran and therefore he cannot resist the shifting to another property. On so finding the Land Tribunal found that the value of the homestead will come to Rs. 216-50 and the shifting charge was determined at Rs. 15/ -. The land owner was directed to deposit this amount within two months from the date of the order and also produce the draft sale deed of the property proposed to be conveyed to the kudikidappukaran to which he is to shift It is this that is questioned in this original petition.

(2.) THE first contention that is raised by the petitioner's counsel is that the petitioner is entitled to certain rights in the property as per the registered udampady entered into between him and the 1st respondent in the year 1962. The circumstances under which that Udampady was executed are stated in that udampady itself a copy of which is filed by the 1st Respondent as Ext. R-4. The 1st Respondent alleging that the petitioner is interfering with his possession of the property and also misappropriating the yield from the property, filed a suit. O. S. No. 477 of 1961 on the file of Shertallai Munsiffs Court. That suit was compromised on the execution of the Udampady referred to earlier. In that udampady the filing of the suit and the understanding arrived at between the parties are narrated and then it is stated that on receipt of Rs. 200/- the petitioner herein has relinquished all his claims for value of improvements and other rights in the property and he has no objection to an order of injunction being passed as one of the terms of the plaint. It is further stated that he will continue to reside in the building put up by him in it as Adakudi. The right which he has as an Adakudi is stated in the document thus:-- (Original in Malayalam omitted --Ed.)This will clearly show that as incidental to his residence in the property he will take these articles and he will have no other right in the property. He himself has understood this right as a customary right mentioned in Section 79-A of the Act and stated so in his written statement filed in the suit for shifting. The moment he shifts from the premises this incidental right also will naturally vanish. He cannot refuse to shift from the premises on the basis of these terms. Therefore, the Land tribunal was correct in coming to the conclusion that he is bound to shift to another property of the 1st Respondent if the 1st Respondent satisfies the conditions mentioned in Section 75 (2) of the Act.

(3.) THE next contention raised by the petitioner is that he has not been awarded the reasonable cost of shifting the kudikidappu to the new site. The Land Tribunal fixed the value of the building belonging to the petitioner at Rs. 216. 50, directed payment of that and also another sum of Rs. 15/- as shifting charges for transporting the household utensils. In so doing the Land Tribunal observed thus:-