SANKARAN Vs. KOCHUKUITY

JUDGEMENT

(1.) IN this original petition the petitioner, who is the ist respondent in O. A 1337/ 71 before the Land Tribunal, Beypore, questions the legality and validity of a preliminary order passed by the Land Tribunal under R. 81 of the Kerala Land Reforms (Tenancy) Rules (shortly stated the rules), which is marked as Ex-P1 in these proceedings. The petitioner was the 1st respondent in the proceedings before the Land Tribunal filed by the 1st respondent herein for alleged kudikidappu rights in the property owned by the present petitioner under S. 80b of the Kerala Land Reforms Act (shortly stated the Act ). IN that proceedings the petitioner opposed the application for purchase of kudikidappu on the ground that the 1st respondent is not a kudikidappukars within the meaning of the Act. According to him the disputed property was subject matter of a partition suit O. S. 29/59 in the court of the sub Judge, Calicut, in which the petitioner is the plaintiff and in the final decree for partition the property with the house had been set apart to the petitioner. This house had been valued by the commissioner who effected the partition at Rs. 5000/ -. It is also contended that the Ist respondent has 28 cents of land which she purchased in 1973. The Land Tribunal considered the question whether the Ist respondent is a kudikidappukaran and has passed the preliminary order impugned in these proceedings.

(2.) IT appears from Ex-P1 that in the Panchayat concerned the house has been registered in the name of Arumugham who is the 2nd respondent herein. On the basis of this registry the Land Tribunal states that this being prepared by a competent authority under the powers vested in him by a statute would be sufficient proof of the respondents' contention that the house is their homestead. The oral evidence adduced before the Land Tribunal, namely that of an elder brother of the present petitioner has also been relied on by the Land Tribunal to find that the Ist respondent is a kudikidappukaran. The Land Tribunal has stated: "he has deposed that the house in question constructed by his father (also the respondent's father) and for the purpose of constructing this house the first petitioner's husband had given him (witness father) Rs. 1002-50. He has knowledge of this from the diary maintained by his father. " IT is stated in the order that the first respondent therein namely the present petitioner had filed a certified copy of a statement filed by the petitioner in the O. A. in E. P. 114/69 and E. A. 366/69 as well as some other documents which were marked in the proceedings as Ex. D1. However this evidence has not at all been considered by the Land Tribunal except merely stating that the documentary evidence tendered by the respondent is not "proof to show the ownership of the house". Then the Tribunal goes on to state "ext. P1, P2 and the oral evidence of pw. 1 are conclusive proof to show that the petitioners are the owners of the petition schedule house, especially in view of the fact that the respondent has not adduced any counter evidence. " The oral evidence adduced in the case will not be of any help to come to the conclusion that the Ist respondent is a kudikidappukaran. The Panchayat records produced also would not indicate that the Ist respondent is a kudikidappukaran.

(3.) WHAT is argued that is that Ex. P1 being an order affecting the rights of parties it is appealable. The right of appeal under s. 102 is only from an order under S. 80b and not from an order on a jurisdictional fact. Passing of such an order as Ex. P1 is not the one contemplated under S. 80b. That does not mean that when a question comes before the Land Tribunal whether a person is a kudikidappukaran or not the Land tribunal cannot decide that question. Apart from the fact that every Tribunal has got inherent jurisdiction to decide a jurisdictional fact unless specifically excluded by statute, R. 81 of the rules specifically gives power to the Land Tribunal. But that cannot be equated to be an order under S. 80b.