NELLIKANDI VALIYA POCKER Vs. POTHACHOLA BAVA

JUDGEMENT

(1.) Plaintiff in OS 6/88 on the file of Munsiff Court, Kalpetta was the appellant. Respondent was the defendant. On the death of the appellant, additional appellants 2 to 5, his legal heirs were impleaded in the appeal. Deceased appellant filed the suit for recovery of possession of the plaint schedule building. According to plaintiff, plaint schedule building was rented out to the respondent as per an oral lease on 01/05/1970 on a monthly rent of Rs.15/- and since then respondent has been in possession of the same and it was subsequently enhanced to Rs.30/- from 01/02/1981 and respondent defaulted to pay the rent from January, 1984 and inspite of Ext. A1 notice dated 26/11/1986 demanding surrender of the building with arrears of rent, respondent did not surrender or pay rent and therefore plaintiff is entitled to recovery of possession as the tenancy has been terminated by Ext. A1 notice. Respondent in the written statement contended that the building was constructed by him in 1960 and since then he has been in continuous occupation of the building and he was permitted by the plaintiff to put up the homestead and since then he has been in possession of the homestead and therefore he is a kudikidappukaran entitled to protection under Kerala Land Reforms Act and he cannot be evicted. As the question of kudikidappu raised by the respondent arises for consideration in the suit, as he is bound to, learned Munsiff referred the question to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. Land Tribunal after examining the plaintiff and the defendant and marking the documents rendered a finding in RC 30/89 that defendant is a kudikidappukaran as defined under the Kerala Land Reforms Act. On receipt of the finding, learned Munsiff examined plaintiff as PW 1, defendant as DW 1 and marked Exts. A1 to A3 on the side of the plaintiff and Exts. B1 and B2 on the side of the defendant. As the finding of the Land Tribunal is binding on the Trial Court, learned Munsiff accepting the finding held that as defendant is a kudikidappukaran plaintiff is not entitled to the decree for recovery of possession. Plaintiff challenged the decree and judgment before Sub Court, Sultanbathery in AS 45/91. Learned Sub Judge reappreciated the evidence, including the finding of the Land Tribunal and confirming the finding of the Land Tribunal dismissed the appeal. It is challenged in this second appeal.

(2.) Second appeal was admitted on formulating the following substantial questions of law.

(3.) Learned counsel appearing for appellant and respondent were heard.