BAVA MARAKAR HAJI Vs. MOHAMMEDKUTTY

JUDGEMENT

(1.) The short point that falls to be decided in the revision is whether a mortgagee is entitled to maintain an application for purchase of "kudikidappu" under S.80B, Land Reforms Act, during the subsistence of the mortgage. It arises under the following brief facts: On 3-12-1968 the petitioner possessorily mortgaged a piece of land measuring 4 1/2 x 4 koles to the respondent for Rs.250/- under Ext. B1 for a period: of 3 years. It provided for the payment of compensation on redemption in case the respondent constructed any building or made any other improvements. The respondent has admittedly constructed a residential building in the property. On 12-3-1976 he brought the application under S.80B claiming that he was a kudikidappukaran of the building and that he was entitled to an order for its purchase. The application was resisted by the petitioner contending that the respondent was no kudikidappukaran and that even if he was one, his prayer was premature as the mortgage was still subsisting and had not been redeemed. I am not referring to the other contentions between the parties which were alive before the authorities below as they are now of no relevance.

(2.) The Tribunal allowed the application finding that the respondent was a mortgagee with possession of the land, that he had erected a homestead and has been residing therein, that he has no other kudikidappu or residential building or land, exceeding 10 cents or income exceeding Rs. 2000/- a year and that he was a kudikidappukaran. It held that Explanation IV to S.2(25) of the Act supported the petitioner's claim. On appeal preferred by the petitioner the Appellate Authority (Land Reforms), Kozhikode confirmed the order of the Tribunal.

(3.) For the disposal of the revision the only provision that requires to be considered is Explanation.4 to S.2(25) which defines "kudikidappukaran". The Explanation reads: