BALAMMAL Vs. VASANTHAKUMARI

JUDGEMENT

(1.) THE plaintiff in O. S. No. 876 of 1967 of the Second additional Munsiff's Court, Trivandrum, is the appellant. Defendants 1 to 4 in the suit are the respondents. THE suit was filed for removal of trespass and for recovery of the property scheduled to the plaint. THE property scheduled to the plaint is a small portion about 4 cents in Survey Nos. 970 and 971, and the relief sought for is for recovery of about half a cent therein. THE property belonged to one Subramonia Pillai. He sold it to Vaikundam Pillai on 5-10-1955. THEre was an agreement between vaikundam Pillai and the plaintiff to purchase about 9 cents of land including the plaint property. This led to the filing of O. S. 203 of 1957 by the plaintiff for specific performance against Vaikundam Pillai. He thereafter obtained conveyance through court as a result of Ext. A5 judgment dated 18-11-1963 in A. S. No. 1037 of 1959 of the High Court. THE plaintiff obtained possession on 15-10-1968. This suit was filed just prior to the said recovery of possession of the property scheduled in p. S. No. 203 of 1957, for the small portion in Sy. Nos. 970 and 971. Earlier, the 1st defendant immediately after the sale by Subramonia Pillai to Vaikundam Pillai on 5-10-1955, filed O. S. 11 of 1956 (Ext. BI) in the District Court, Trivandrum against Subramonia Pillai, vaikundam Pillai, the plaintiff herein and others. In the said suit, the Ist defendant herein contended that Subramonia Pillai was not competent to alienate the property since he had agreed to give the property to the 1st defendant and her children. That suit was dismissed for non-prosecution. Alleging that the 1st defendant trespassed into the property on 4-11-1955 the suit was laid for recovery of the small portion in Sy. Nos. 970 and 971.

(2.) THE defendants resisted the suit, the 1st defendant claiming independent title. She contended that her father constructed the building in pursuance to permission given by Subramonia Pillai's father. THEy pleaded that they were in occupation of the building several years before the suit and the plaintiff's title, if any, is lost by adverse possession. Defendants also claim kudikidappu rights and claimed protection against eviction.

(3.) HAVING heard counsel appearing for both parties, I am of the view that the approach and conclusion of the lower appellate court is unsustainable. It is important to note that in this suit the specific plea of defendants 1 to 4 in the written statement was that their father, the 5th defendant, constructed the building as per permission given by Subramonia pillai's father and that defendants 1 to 4 are residing therein with the 5th defendant. That is the foundation laid in the case to explain her possession or occupation of the building. Para 9 of the written statement is specific in this regard. The 1st defendant has also deposed to that effect as Dwl. It is for the 1st defendant to prove such a plea. It is common ground that the said plea is not established in this case. Nor was such a case urged in this appeal. No other alternate case was put up in the written-statement. In Ext. BI (O. S. 11 of 1956) the 1st defendant as plaintiff claimed that she and her children were in occupation of one of the buildings mentioned in the plaint along with her husband Subramonia Pillai, on a promise made by him (Subramonia Pillai) to make a gift of the properties and the buildings covered by the suit to her for the livelihood of herself and her children. (Para 2 of Ext. BI ). In Exts. B2 and b3, written statements in the former suit, the 1st defendant's occupation was not denied. It is this factor that has been relied on by the lower appellate court. But the lower appellate court failed to note that the occupation that was pleaded in the suit (Ext. BI) was that the 1st defendant was in occupation along with her husband Subramania Pillai in pursuance to a promise held out by subramonia Pillai to make a gift of the properties and the buildings to the 1st defendant. No case of independent possession or occupation was ever pleaded or even suggested. The occupation pleaded was not "de hors" her husband, subramonia Pillai. Para. 2 of Ext. BI, plaint is specific in this regard. It is clear from the evidence of dw. 3 Subramonia Pillai that himself and the 1st defendant lived as husband and wife and that they have two children. The question that falls to be considered is whether such an occupation by the 1st defendant of the building is sufficient in law to constitute her kudikidappukari. In Perila Janardhanan v. Vellachi Chinna (1972 KLT. 207), madhavan Nair J. held: "kudikappukaran, as defined in the Land Reforms Act and its accessory enactments, like the Act IX of 1967, must have occupation of a portion of any land or of a but in his own right. A person in occupation by virtue of a right vested in another, e. g. a wife, child, member of the family, or servant residing in a building or outhouse in virtue of a right in the husband, parent, manager of the family or master, cannot claim the status of a kudikidappukaran. A member of the mortgagee's family occupying a building on the mortgage property or a member of a tenant's family occupying a building on the leasehold, cannot be said to have such an occupation of the building as would entitle him to the status of a kudikidappukaran and to consequent fixity of occupation contemplated in the laws. In short, the expression "occupation" in the definition of "kudikidappukaran" means occupation in one's own right and not occupation in virtue of a right of another, or of a right common to him and the person who permitted his occupation. Duality of persons in the permitter and the permitted is an essential feature of a'kudikidappu'. It will be a fraud on law for a mortgagee to put a near relative of his in occupation of building on the mortgage-property to entitle the latter to fixity of occupation and consequent immunity from eviction on redumption of the mortgage; it is in effect the ouster of a needy person out of his property, which law always regarded as unconscionable. " (Emphasis supplied)