PAPPI NARAYANAN Vs. ITTI AVIRA NEITHI

JUDGEMENT

(1.) This appeal arises out of an order passed by the execution court in the course of the decree holders attempt to get delivery of the plots allotted to the share of the plaintiffs as per the final decree in a partition suit. The other share belongs to the defendant. The plaintiffs and the defendant were coowners of the property when the suit was instituted. The present appellants are persons residing in the plots set apart to the share of the plaintiff. They objected to their eviction from these plots and contended that they are entitled to the benefits of Act XIII of 1955 (The Travancore - Cochin Prevention of Eviction of Kudikidappukars Act). The lower court overruled their objection and hence this appeal.

(2.) The benefits of Act XIII of 1955 are available only to those kudikidappukars who have applied within the time specified in S.12 of the Act and got their names registered as kudikidappukars. The appellants have not contended that they have so applied and got themselves registered as kudikidappukars and hence that matter has not been enquired into. Even apart from this aspect, their claim for the benefits of Act XIII must fail on another ground. S.2 Clause.(c) defines kudikidappukaran as a person who has no homestead or land of his own to erect a homestead, and has been permitted by an owner of land to have the use and occupation of a portion of the land for the purpose of erecting a homestead, with or without an obligation to pay rent for the use and occupation of the site so given. Owner is defined in Clause.(e) of the same section, as a person who is entitled to the absolute proprietorship of land and includes in the case of land of which superintendence has been assumed by the Court of Wards under the Travancore Court of Wards Act of 1110 or the Cochin Court of Wards Act XIII of 1097 or the Collector or the Tahsildar as the case may be. Going by these two definitions it is clear that the counter petitioners appellants cannot be deemed to be kudikidappukars as defined in the Act. Admittedly they were let into the property and permitted to reside in the property by the defendant only. The lower court has also definitely found that they were thus let into the property subsequent to the institution of the present suit. After the institution of the suit the defendant could not be deemed to have absolute proprietorship over the suit property. He was only entitled to the plot that may fail to his share as per the final decree in the suit. He could therefore confer kudikidappu rights on persons who may be let into such plot. Since he has no ownership or proprietorship over the plot falling to the plaintiffs share, he could not confer such right on any person whom he may let into the plaintiffs share of the property. With the institution of the suit the coownership was put an end to, and the plaintiff became the absolute owner of his share. It only remained to define and allot to that share a specific plot. Thus it is clear that on the strength of the permission obtained by the defendant alone, the counter petitioners cannot claim that they have become kudikidappukars as against the plaintiff or the plot allotted to his share. Plaintiff is entitled to get recovery of possession of that plot from the defendant and from those who have been let into the property by the defendant. This view gains support from the decision in AIR 1943 Patna 194 where also a situation similar to the present one had come up for consideration. The answer given by the Full Bench which decided that case, was in favour of the decree holder plaintiff and against those who had claimed occupancy right on the strength of permission granted by the defendant subsequent to the institution of the suit. Thus in any view of the case the order of the lower court calls for no interference.

(3.) In the result this appeal is dismissed with costs.