P. THANKAMONY Vs. PONNAMMA,

JUDGEMENT

(1.) PETITIONER is the applicant before Land Tribunal, Thiruvananthapuram and appellant before Appellate Authority (L.R.), Alappuzha. Respondents 1 and 2 are respondents before the Land Tribunal and Appellate Authority. Petitioner filed O.A.247/93 before the Land Tribunal for purchase of kudikidappu right claiming that she is a kudikidappukari. Land Tribunal holding that petitioner did not adduce any oral or documentary evidence to prove that she has been in possession of the building prior to 1.4.1964 found that she is not entitled to the kudikidappu right. Petitioner challenged that order before Appellate Authority (LR), Alappuzha in A.A. 35/03. The Appellate Authority after reiterating the contentions raised by both the petitioner and respondents dismissed the appeal finding that on going through the lower court records and hearing their counsel there is no merit in the appeal. This petition is filed challenging that order under Section 103 of Kerala Land Reforms Act.

(2.) LEARNED Counsel appearing for petitioner and respondents were heard.

(3.) THEN the question is whether the petitioner is entitled to kudikidappu right?. This question was not independently considered by either the Land Tribunal or the Appellate Authority. Learned Counsel appearing for petitioner argued that even if the petitioner did not succeed in establishing his case that he has been put in possession of the land by the mortgagee, it is the specific case of respondents, in O.S. 2557/03 filed by them for redemption of the mortgage, where petitioner was impleaded as eighth defendant, that petitioner was inducted into possession by the mortgagee. It was argued that in that case if petitioner is not having any other land, where he could erect a homestead and the building is a hut, being its cost of construction less than Rs. 750/ - or rental value at the time of construction less than Rs. 5/ -, being a person permitted to occupy the building by the mortgagee a person in lawful possession of the land she is entitled to claim kudikidappu and this question was not considered by the Land Tribunal or Appellate Authority and so the case has to be remitted back to the Land Tribunal for considering the question afresh. Learned Counsel appearing for respondents vehemently argued that petitioner has no specific case whether she was permitted to occupy the land or hut or whether she constructed the homestead and a decree for redemption and recovery of possession was already passed in O.S. 2557/93 and in such circumstance, case need not be remanded and on the materials this Court can find that petitioner is not entitled to kudikidappu right.