ACHUTHAN Vs. NARAYANI AMMA

JUDGEMENT

(1.) The building involved in the present case and the paramba wherein it is situate were originally owned by the Arackal tarwad. Thencheri Cheriyath Madavi Amma was holding the same on kuzhikanam right from the Arackal tarwad. In 1943, the item was leased out to Parambath Ramunni as per document No. 1515 of 1943 of Cannanore Registry Office. The children of Madhavi Amma - Narayanan Nambiar and Narayani Amma got the item as per document No. 2500 of 1948. Ramunni attorned to them during the same year. On 4-1-1954, Ramunni executed a koolichit in favour of Madhavi Amma as the karanavasthree of her tavazhi in respect of the dwelling house situated in the property alone. It is mentioned in that document that the rights under the marupat of 1948 have been orally surrendered on 11-18-1953 to the person in whose favour it was executed. A period of one year had been fixed in the koolichit Narayani Amma, the daughter of Madhavi Amma, who got the item in a partition in her tavazhi instituted O.S. 401 of 1964 for recovery of possession of the building impleading Ramunni and also Cheeya and her son Achuthan. Ramunni contended that the koolichit was a concocted one and that he had let the building to Cheeya under a koolichit dated 19-5-1952. Cheeya and Achuthan claimed that they were in occupation of the building on a rent of Rs. 3/- per month. They claimed to be kudikidappukars entitled to fixity of tenure. While the suit was pending, Cheeya and Achuthan filed K. K. No. 584/SR/65 for registration of the Kudikidappu right. The Tahsildar, Cannanore, dismissed the claim as it was found that the value of the house at the time of construction exceeded Rs. 400/-, the limit fixed under Act 1 of 1964. Relying on the above finding, the Additional Munsiff decreed the suit for recovery of possession of the building. The decision was confirmed in appeal, A.S. 542 of 1967. While the matter was pending execution, the three daughters of Cheeya instituted O.S. 889 of 1969 for an injunction restraining Narayani Amma from executing the decree and claimed that they had kudikidappu right in the property, impleading Ramunni and Achuthan also as defendants. By that time, Act 1 of 1964 stood amended by Act 9 of 1967. Under the said amendment, the limit for the cost of construction of the dwelling house in the case of a kudikidappu was raised to Rs. 500/- and that for the rent of the building was enhanced to Rs. 5/-. While the suit was pending, the Kerala Land Reforms Act was amended by Act 35 of 1969. Under the said amendment, the limit for cost of construction was further enhanced to Rs. 750/- and the kudikidappukars were given the right to purchase the kudikidappu The plaintiffs in O.S. 889 of 1969 and their brother, Achuthan filed O.A. 579 of 1971 before the Land Tribunal, Edakkad for the purchase of kudikidappu right under S.80B of the amended Act. The petition was allowed by the Land Tribunal on 19-6-1972. In view of S.125 of the Kerala Land Reforms Act, the Munsiff, Cannanore adopted the finding of the Land Tribunal and decreed the suit as sued for. The disposal of the suit was in September, 1972. Narayani Amma filed A. A. 883 of 1972 against the order of the Land Tribunal. She also filed A.S. 223/72 before the Subordinate Judge, Tellicherry against the decree in O.S. 889/69. The Appellate Authority held that under S.2(25)(b) of the Land Reforms Act, to enable a person in occupation of a hut to claim kudikidappu right, permission to occupy the hut should have been given by a person in lawful possession of the land, in respect of a hut belonging to him. According to the Appellate Authority, permission by Ramunni was insufficient as the hut did not belong to him. The fact that the mother of the petitioner was residing in the house since 1952 was not sufficient according to the Appellate Authority to attract the provision in Explanation IIA to S.2(25) as the presumption regarding permission stood rebutted by the terms of the marupat. The petitioners were, therefore, held to be not kudikidappukars. As the parties, in A.S. 223 of 1972 had agreed to abide by the decision of the Appellate Authority, that appeal was allowed. S.A. 1232 of 1976 filed by the plaintiffs in O.S. 889 of 1969 is against the decision in A.S. 223 of 1972. CRP. 834 of 1976 filed by them is against the decision in A.A. 883 of 1972. Since the main decision is that of the Land Tribunal, the parties will be referred to according to their rank in O.A. 579 of 1971.

(2.) The learned Counsel for the petitioners mainly based the claim of the petitioners on S.2(25) of Act 1 of 1964, as amended by Act 17 of 1972. The said amendment came into force on 2-11-1972 before appeals were filed before the Appellate Authority and the Subordinate Judge's Court. There is no scope for doubt that the appeals should have been disposed of on the basis of the Kerala Land Reforms Act as it stood amended by Act 17 of 1972. The relevant portion of the definition of 'Kudikidappukaran' under Act 1 of 1964 and of Explanation HA after Act 17 of 1972 read as follows:

(3.) The case of the petitioners is that they fell within the definition of 'Kudikidappukaran'. In the alternative, they point out that they along with their mother, Cheeya were in occupation of the dwelling house on 16th August, 1968 and continued to be in occupation till the 1st of January, 1970 and thereafter also and, therefore, they should be deemed to be kudikidappukars, under Explanation IIA, added in 1972.