DAMODARAN Vs. VASUKUTTY

JUDGEMENT

(1.) Admittedly the 1st defendant constructed the dwelling house in the suit property with the permission of the predecessor in interest of the plaintiff, and is residing there with his wife, the 2nd defendant. The plaintiff respondent sued for evicting them therefrom and the Trial Court decreed the suit. The lower appellate court confirmed that decree. Their claim for kudikidappu rights was repelled by the lower courts on the ground that the 1st defendant and his three brothers own a property in common, and that deducting 8 cents occupied by a kudikidappu that is on that property, the four brothers have 45 cents of land as coownership property, so that each of the four brothers is entitled to more than 10 cents of land. It was held that the 1st defendant is, therefore, not a kudikidappukaran as defined in S.2(25) of the Kerala Land Reforms Act, 1963. The correctness of this is canvassed before me on behalf of defendants 1 and 2.

(2.) S.2(25) aforesaid, so far as it is material for this case, reads:-

(3.) To take a person outside the ambit of the above provision four things have to be established, and they are:- (i) he has a homestead, or has land in excess of the area specified therein; (ii) be possesses it; (iii) he has it and he possesses it either as owner or as tenant; and (iv) he can erect a homestead thereon. Under the Act, a tenant has fixity of tenure, and therefore, what the statute requires seems to be non precarious title and possession of an alternate land where he could erect a homestead. In other words, if possession of the alternate land is not in his own right so that peaceful and undisturbed residence there is a matter of chance, it cannot be said that he is disqualified to be a kudikidappukaran. This is clear from the object, the statute has in view in enacting S.75 onwards in Chapter II of the Act. These provisions confer on a kudikidappukaran fixity of kudikidappu or residential rights so that he may without fear of eviction continue to reside in the homestead or kudikidappu, and this is achieved by prohibiting his eviction; he can only be shifted to an alternate site on the same land or on another land belonging to the landholder or on a land acquired for that purpose, and that, after giving ownership of that alternate site to him (the kudikidappukaran). Therefore, when a kudikidappukaran is sought to be evicted on the sole ground that he has another land in his possession where he can erect a homestead, the statute requires that he should have it and he possesses it free of any risk of lawful obstruction and of disturbance to erect a homestead there and to reside there peacefully. In this connection it is worthwhile to note that unlike S.75(2)(ii) of the Act wherein the emphasis is on the fitness of the alternate site offered by the landholder to shift a kudikidappukaran to that site, the stress here is on: he could erect a homestead. This means not only that the land he has should be fit for erecting a homestead but also that he should be able to erect a homestead thereon unhampered by any one.