MOHAMMED Vs. ABDULLA

JUDGEMENT

(1.) The respondent plaintiff filed a suit for recovery of possession of the plaint schedule property having an extent of 7 cents in R.S. No. 83/5 of Pathur Village with a building thereon. The appellant defendant contended that he had constructed the building in question and that this was on the basis of a permission granted to him by the plaintiff on 8.8.1981. He therefore, claimed that he was a kudikidappukaran and there could be no recovery of possession of the homestead. The title of the plaintiff having been admitted, the case proceeded on the defendant's plea and rightly so. The defendant produced Ext.B1 to show that he had obtained permission for the construction of the building in R.S. No. 83/5 from the local authority. Under Ext.B2, it turned out that the second defendant, the wife of the first defendant, had herself obtained assignment of the 30 cents of land to the west of the property belonging to the plaintiff which itself was a land assigned to the plaintiff. It appears that from out of the property obtained assignment of, the plaintiff has sold the properties other than the present plaint schedule. The defendants also examined a witness in support of their case.

(2.) The issue regarding kudikidappu was referred to the Land Tribunal by the Trial Court in terms of S.125(3) of the Kerala Land Reforms Act. The Land Tribunal relying on Ext.B8, a sale deed executed by the plaintiff in favour of a stranger in respect of the balance property found that there was a house in existence in the area that was excluded from the sale deed and that was in fact the plaint schedule property. The Land Tribunal also found that the permission allegedly obtained by the first defendant from the local authority related to the construction of the building in the property lying to the west of the disputed property obtained assignment of by his wife the second defendant under Ext.B2 order of assignment. The Land Tribunal therefore, held that the claim of the defendants that the defendants have constructed the suit building, could not be accepted. Then the only other possibility for conferring the status of a kudikidappukaran on the first defendant was to find that the building was permitted to be occupied by him by the plaintiff and such building was a hut within the meaning of the Act. The Land Tribunal found that the building was not a hut since the cost of its construction would have exceeded Rs.750/- and it would have fetched a rent exceeding Rs.5/- per month, on the date of its construction. The Tribunal also found that the defendants have failed to establish any case of permission from the plaintiff. It was necessary in this case for the defendants to positively establish a permission from the plaintiff, the owner of the land in question, in view of the fact that what was claimed was that the permission was granted in the year 1981 and Explanation.2A to S.2(25) of the Act had no application. Based on the finding of the Land Tribunal that the first defendant has not established the claim of kudikidappu, the suit was decreed by the Trial Court. The defendants went up in appeal. The lower appellate Court, on a reappraisal of the relevant materials, came to be conclusion that the defendants have not established either the permission or the factum of construction of the building. It also held that the building could not be found to be a hut on the basis of the materials available. The very case set up by the defendants that permission to occupy was granted in the year 1981 was found against. The decree for recovery was therefore, confirmed. In this Second Appeal, the conclusions of the courts below are challenged.

(3.) As noted, the permission that was set up was a permission granted on 8.8.1981. To satisfy the definition of a kudikidappukaran under the Act, the defendants had to establish that permission as a positive fact. There is no acceptable evidence to prove the grant of any permission by the plaintiff. The finding of fact rendered in that behalf by the Courts below does not call for any interference in this Second Appeal. Similarly, the courts below have also found that the defendants have not established that the building was constructed by the defendants. Obviously therefore, it could not be held that it was a homestead within the meaning of S.2(25) of the Kerala Land Reforms Act. The defendants could claim the status of kudikidappukaran, even if the permission was established, only by showing that the building was a hut as defined under the Act. On the materials, the Land Tribunal and the appellate Court came to the conclusion that the building was not a hut since the cost of construction would have exceeded Rs.750/- and the rent it would have fetched would have exceeded Rs.5/- per month on the relevant date. The finding that the building is not a hut as defined, is also based on relevant materials and calls for no interference in Second Appeal.