MANUAL DCRUZ Vs. STATE OP KERALA

JUDGEMENT

(1.) This Civil Revision Petition comes up before a Division Bench since a learned Judge of this court doubted the correctness of the decision of Kochu Thommen, J in Achutha Shenoi v. Land Tribunal, Alwaye ( 1980 KLT 823 ).

(2.) The revision arises out of an application filed by the revision petitioner under S.80B of the Kerala Land Reforms Act for the purchase of kudikidappu situated in Sy. No. 287/4 of Rameswaram Village, Cochin Taluk. There is no dispute that the applicant is in occupation of the building. According to him the building is a hut within the meaning of the Act. He has no other building or land to put up a homestead, and is therefore a kudikidappukaran entitled to purchase the kudikidappu under S.80B of the Act. The 3rd respondent in the CRP is the owner of the land and building. Respondents I and 2 are only the State and the Appellate Authority respectively. The third respondent raised a contention that the building is not a hut and the applicant is not entitled to kudikidappu rights. He raised also the contention that the claim of kudikidappu is barred for the reason of the order dated 18-1-1972. of the Rent Control Court, Cochin for eviction of the applicant under S.11(2) and (3) of the Kerala Buildings (Lease and Rent Control) Act. The Land Tribunal entered a preliminary finding that the applicant is a kudikidappukaran, entitled to purchase the kudikidappu under S.80B of the Kerala Land Reforms Act. The plea of res judicata based on the judgment of the Rent Control Court in RCP No. 151 of 1969 was rejected as according to the Tribunal the decision of the Rent Control Court is not binding on it. An appeal against the preliminary finding by the third respondent land owner was rejected as not maintainable. The Land Tribunal thereafter passed a final order for assignment of the kudikidappu to the applicant. In appeal by the third respondent, the appellate authority has reversed the decision of the Land Tribunal and has dismissed the application on the ground that the finding of the Rent Control Court in RCP 151 of 1969 that the applicant is not a kudikidappukaran is binding on him and, it operates as res judicata against his present plea of kudikidappu. It is against the decision of the appellate authority that the applicant has come up in revision.

(3.) The judgment in RCP 151 of 1969 shows that the applicant bad raised the plea that be is a kudikidappukaran, and no order of eviction can be passed against him under S.11 to the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court has considered this question and has entered a finding that the applicant is not a kudikidappukaran, and that he is only a tenant of the building liable to be evicted under sub-s.(2) and (3) of S.11 of the Kerala Buildings (Lease and Rent Control) Act.