VAREED Vs. KURIAN

JUDGEMENT

(1.) Defendants 2,11, 12, 15 and 16 to 18 in O.S. 392/84 on the file of Munsiff Court, Chavakkad are the appellants. First respondent was the plaintiff. On the death of first respondent, respondents 2 and 3 were impleaded as his legal heirs. On the death of first appellant other appellants were recorded as his legal heirs. First respondent plaintiff filed the suit seeking recovery of possession of the plaint schedule property. Plaint schedule property is building No. 187/276 in R.S. No. 45/9 of Brammakulam Village. Case of plaintiff was that plaint schedule building originally belonged to his predecessor Pulikottil Tharu and it was granted on rent to Velukutty under Ext.A1 registered rent deed dated 17.3.1923, and after Velukutty surrendered possession of the building, for the purpose of his residence, Kochouseph, the predecessor in interest defendants 1 and 2 obtained it and he was residing therein and while so Tharu died and his legal heirs divided the properties under Ext. A2 partition deed whereunder the property was alloted to Francis and Kochouseph was continuing as the tenant of Francis after a fresh rental arrangement dated 1.1.1960 and he was residing there with his family and on his death his tenancy rights devolved on defendants 1 and 2 the children and on the death of Francis, as per Ext.A3 Will executed by Francis, his right over the property was bequeathed in favour of plaintiff and he has title to the property. While so, claiming that he is a Kudikidappukaran and is entitled to purchase kudikidappu in respect of 10 cents of the property, first defendant filed O.A.3760/1970 before Land Tribunal which was dismissed on 18.11.1972. Plaintiff sent a lawyer notice terminating the tenancy demanding surrender of possession and a reply was sent by defendants contending that the building was constructed by Kochouseph and it is a kudikidappu. The plea of kudikidappu is unsustainable and so plaintiff is entitled to get a decree for recovery of possession on the strength of his title with future mesne profits.

(2.) Defendants 1 and 3 jointly filed a written statement denying the lease set up contending that the building was constructed by Kochouseph on the licence granted permitting Kochouseph to construct a building on the land and licence is irreovacable and therefore plaintiff is not entitled to recover possession of the property. Defendants 2 and 11 filed a joint written statement contending that Kochouseph was permitted to construct a building by Tharu and pursuant to the licence Kochouseph constructed the building and it is a kudikidappu and Kochouseph had constructed a building and was residing therein and it is a permanent structure and amount was spent for the construction and plaintiff is not entitled to the decree sought for. Learned Munsiff framed the necessary issues. As kudikidappu was claimed and question of kudikidappu raised arises for consideration, learned Munsiff referred that question to Land Tribunal under Section 125(3) of Kerala Land Reforms Act. Land Tribunal rendered a finding that Kochouseph had other properties where he could erect a hut and therefore he is not a kudikidappukaran and defendants are not entitled to kudikidappu right. On receipt of the finding of the Land Tribunal, learned Munsiff marked Exts.A1 to A8 and Exts.B1 to B6 and accepting the finding of the Land Tribunal held that defendants are not entitled to kudikidappu right. Learned Munsiff also held that defendants did not adduce any evidence to prove that the licence is irrevocable. Holding that plaintiff is entitled to recover possession on the strength of title, suit was decreed. Appellants challenged the decree and judgment before District Court, Thrissur in A.S.311/1990. Learned District Judge on reappreciation of evidence confirmed the decree and judgment passed by the learned Munsiff and dismissed the appeal. It is challenged in the Second Appeal.

(3.) The second appeal was admitted formulating the following substantial questions of law.