OUSEPH ANNA Vs. MATHAI THOMAS

JUDGEMENT

(1.) Additional respondents 2 to 7 in O. A. 43 of 1986 of the Land Tribunal, Vaikom are the petitioners. The second respondent in the revision petition, Ouseph Ouseph is the husband of the first petitioner Ouseph Anna, and the father of other petitioners. First respondent, Mathai Thomas, is the brother of the second respondent. They are children of two different fathers born through one mother. The first respondent filed an application for purchase of kudikidappu under S.80B of the Kerala Land Reforms Act, hereinafter referred to as "the Act". Originally he impleaded only the second respondent. Respondents 2 to 7, ie., the petitioner herein, got themselves impleaded on the basis of a gift deed in their favour by the second respondent. According to the petitioner in the O.A., he was allowed to construct a hut for the purpose of his residence in the said property by his brother, the second respondent, and, accordingly, he is in possession of the property from June 3, 1980. He contended that he has no other property. Hence he applied for purchase under S.80B of the Act. Second respondent in the present revision petition is one Ouseph Ouseph, who was the only respondent in the O. A. earlier, filed written statement. In the written statement he contended that the petitioner in the O.A. and himself were residing with their mother in another property till the mother died in 1982. In that property, which was being occupied as a kudikidappu, Ouseph Ouseph and the mother Annamma obtained purchase certificate for 10 cents. Thus, Ouseph Ouseph and Annamma each had right over 5 cents of property. After the mother died, the petitioner in the O.A. and Ouseph Ouseph were entitled to half share in the mother's share. In other words, after the mother's death, the petitioner in the O.A. was entitled to 2.5 cents, while the first respondent in the O.A. was entitled to 7.5 cents. But, after the death of the mother some difference of opinion arose between the brothers. Petitioner in the O.A. wanted to live separately. The first respondent in the O.A. allowed the petitioner to construct a building in the petition schedule property on condition that the petitioner in the O.A. shall transfer his right over 2.5 cents in the property, for which purchase certificate was obtained. But, violating that agreement, the petitioner in the O.A. occupied a portion of the aforesaid property and constructed a building without the permission of the owners and he had not given up a right over 2.5 cents to the first respondent. The present petitioners were impleaded as respondents 2 to 7 when they obtained a gift deed from the first respondent in the O. A. In the written statement filed by them, it is contended that no consent was obtained for constructing a building in the petition schedule property.

(2.) The Land Tribunal and the Appellate Authority did not believe the case of the petitioner in the O.A. that he got possession of the property in 1980. On the other hand, the finding is to the effect that the petitioner would have got possession on between 1982 and 1983. Regarding the granting of permission, both the authorities took the view that since the respondents had not filed any petition to evict the petitioner, it can be inferred that the petitioner got possession of the land with the permission of the land owner. On that basis, the Land Tribunal and the Appellate Authority held that the petitioner in the O.A. was a kudikidappukaran and allowed the application. It is against that the present revision is filed.

(3.) The learned counsel for the petitioners contended that as per the definition of S.2(25) of the Act a person can be a 'kudikidappukaran', among other things, if he has been permitted to occupy a building or a land for the purpose of construction of building with or without the obligation to pay rent. No permission was given to the first respondent to construct the building in the property in question. On the other hand, the petitioner in the O.A. and the first respondent are brothers and after the death of their mother, her share in the kudikidappu devolved on both of them. In order to avoid family quarrel, the first respondent in the O.A. informed the petitioner that he will give 2.5 cents in his own property, provided he gives up his right in the property belonging to the mother and himself. The petitioner in the O.A. did not act as per the agreement; but he took possession of the property belonging to the first respondent and put up a hut. The counsel for the petitioners submitted that the burden is not on a kudikidappukaran to show that he was permitted by the owner of the land to occupy a portion of the land. The counsel submits that there is no evidence to show that consent was given. Further, the learned counsel submitted that the inference made by the authorities below on the ground that since the first respondent in the O.A. did not take any proceedings to evict the petitioner, the occupation can be deemed to be lawful, is not correct. The learned counsel submitted that a person has got 12 years of time for evicting a trespasser. The person who trespassed does not cease to be a trespasser because of the delay in filing a suit. It was thereafter, contended that permission given by near relations in order to have a family settlement will not be a permission coming under S.2(25) of the Act The next contention of the counsel for the petitioners was that even according to the petitioner in the O.A. he got possession of the property only in 1980. Hence on the date of the Amendment Act, viz. 1-1-1970, he was not in possession of the property and, therefore, he was not entitled to any kudikidappu right.