NARAYANA PANICKER Vs. THANKAMMA

JUDGEMENT

(1.) Petitioner is a person in possession of land in certain sub divisions in Sy. No. 310 in a portion of which is situated the kudikidappu of the first respondent. Petitioner filed an application under S.75(4) of the Kerala Land Reforms Act, 1963 (for short 'the Act') for shifting the kudikidappu from the south western corner of the entire property to the south eastern portion, When the case was pending before the Tribunal, the first respondent opted to shift to the north western portion. The Tribunal accepted the petitioner's case, rejected the option exercised by the first respondent and directed the kudikidappu to be shifted to the south eastern portion, providing for a right of way subject to the other conditions stipulated in the provisions of law and worked out by the Tribunal. The first respondent challenged this order before the Appellate Authority and the Appellate Authority found that the Tribunal was in error in rejecting the option exercised by the first respondent, upheld the option and modified the order accordingly, directing the kudikidappu to be shifted to the north western portion of the entire property in accordance with the option exercised by the first respondent. It is the correctness and legality of this order which is now challenged.

(2.) Sub-s.(4) of S.75 of the Act states that where the person in possession of the land in which there is a kudikidappu considers that the kudikidappu is so located as to cause inconvenience to him, he may require the kudikidappukaran to shift to another part of the land which is fit for the location of the kudikidappu. No doubt the provisions of sub-s. (4) are attracted to the instant case. That is because the person in possession finds that the kudikidappu of the first respondent is so located as to cause inconvenience to him. Law entitles him to require the kudikidappukaran to shift to another part of the land which is fit for the location of the kudikidappu.

(3.) The question is whether the Tribunal committed any error of law in ignoring the option exercised by the first respondent and directing him to shift not to the north western portion for which he opted but to the south eastern portion for which he did not opt. The first proviso to sub-s. (4) of S.75 states that the kudikidappukaran shall have the right to opt for the portion to which the kudikidappu may be shifted. The second proviso states that the kudikidappukaran shall not be entitled to opt for any portion which is not adjoining the boundaries of the land, except with the consent of the person in possession of the land. The third proviso states that if the kudikidappukaran refuses to opt, he shall be bound to shift to the portion to which he is required to shift by the person in possession of the land.