GOVINDANKUTTY MENON Vs. STATE

JUDGEMENT

(1.) The petitioner before me is the owner of land comprised in Sy. No. 1101/2 in Ayyanthole Village. He is residing in a house of his own in the said land. In the eastern corner of that land there is a Kudikidappu occupied by respondents 3 to 5. The petitioner filed an application for shifting that kudikidappu to 10 cents in Sy No. 1247/1 of the same village. The application was under S.75(2) and 77 of Act 1 of 1964. The case of the petitioner in that application, O. A. 1092 of 1973, was that the petitioner was living with his children in his house and that he wanted to construct buildings for the separate residence of his children. This application was contested by the kudikidappukars. Among other pleas it was also contended by the kudikidappukars that the land was not bona fide required by the petitioner for construction of buildings for the children. It was also contended that leaving out the site of the kudikidappu there was sufficient area available for construction of building. Though in the petition what was averred was that the petitioner required the land for enabling him to construct buildings for his children, in the evidence his case was that he proposed to construct a building for his daughter who was living with him and whose husband was away at Hyderabad. Ext. P1 is the copy of the shifting application and Exts. P2 and P3 are the objections filed by respondents 3 to 5. It was contended by respondents 3 to 5 that they were living in the kudikidappu for the past 35 years, that the building occupied by the petitioner was big enough to accommodate his wife and two children and that without disturbing the kudikidappu any building could be constructed in the plot The Land Tribunal came to the conclusion that the evidence indicated that the kudikidappu was situate in the eastern corner and that it has not been shown in the case that the very site of the kudikidappu was required for the purpose of construction. In this view the application was dismissed. That is challenged in this Original Petition by the landlord.

(2.) The right of a landowner to seek shifting of kudikidappu has come up for consideration in a number of cases before this court and differing views have been taken by the learned Judges of this court on different occasions. I would assume that the position is more or less well settled now by the Full Bench decision of this Court in Korumban v. Land Tribunal, Tellicherry & others ( 1976 KLT 765 ), a case which has reviewed all the earlier decisions on this subject. Of course I notice a decision of the Division Bench speaking on the question again and as I will presently show, with great respect to the learned Judges, what has been said by the Division Bench appears to be contrary to the views expressed by the Full Bench of this Court.

(3.) Before I refer to the decisions I think it will be profitable to refer to the relevant section of the Land Reforms Act. S.75 (2) of the Act runs as follows: