KUNCHI KOMA Vs. CHEERA NARAYANI

JUDGEMENT

(1.) The short question that arises in this Second Appeal is whether the definition of Kudikidappukaran under S.2(25) of Act 1 of 1964 is applicable to the case of the 3rd defendant appellant. The definition, leaving out the provisions and explanations which are not necessary for the purpose of this case, runs as follows:

(2.) It is not sufficient if it is shown that the person who claims Kudikidappu rights is possessed of some land, but such land must be shown to be fit for erection of a homestead. The learned counsel for the appellant contended that any piece of wet land is capable of being reclaimed, converted into garden land and used for erecting a homestead and for the purpose of S.2 (25) that would be sufficient. In considering the question whether a particular piece of land is one on which a person could erect a homestead the nature of the land, the use to which such land is normally put and whether it is reasonable to expect any person to use such land for the purpose of homestead are considerations which are quite relevant. If the definition had required only possession of any land to negative the claim as a kudikidappukaran, one should have accepted the contention of the counsel. But such land is qualified as one on which he could erect a homestead. One does not normally expect a paddy land to be reclaimed into a garden land for the purpose of erection of homestead. No doubt there may be exceptional cases where the paddy land is so situate, say, by the side of the road or by the side of other property which is reclaimed, that it may possibly be said that the land may be put to better use by reclaiming and using for the erection of homestead. That would be for the person who contends that the kudikidappu right is not available to plead and prove. In the present case there is neither such a plea nor proof. The only material available is that the 8 1/2 cents of land which the 3rd defendant is said to be possessed of is paddy land. Apart from the fact that it is certainly not normal to expect such paddy land possibly lying as a part of an 'ela' to be reclaimed and used as land for erection of a homestead, I also see objection to this course in the provisions of the Kerala Land Utilisation Order, 1967. Clause.6(1) of that Order prohibits any holder of a land that has been under cultivation with any food crops three years immediately before the commencement of the Order from converting or attempting to convert or utilising or attempting to utilise such land for the cultivation of any other food crop or for any other purposes. The erection of a homestead is "any other purpose". This can be done only in accordance with the terms of a written permission given by the Collector. It is not necessary for me in this case to embark upon a consideration of the question under what circumstances the Collector would give such permission.

(3.) From the facts of this case I am satisfied that the 8 1/2 cents of land available to the 3rd defendant is such as that on which a homestead could not be erected. If so, the 3rd defendant would be entitled to the benefits available to a Kudikidappukaran under Act 1 of 1964.