XAVIER Vs. LUCY

JUDGEMENT

(1.) A defeated defendant is the appellant herein. The plaintiff filed a suit for injunction. A schedule properties according to the defendant is the area where his kudikidappu situated with appurtenant structures, B schedule is the area wherein the house and house-site including the bath-room etc. situate. B schedule forms part of A schedule. C schedule is the balance area out of A schedule which according to the defendant he was using as necessary site for kudikidappu. The defendant therefore contended that he has got a statutory right in terms of S.79A(1) of the Kerala Land Reforms Act, 1963 to continue the right he had been enjoying as a kudikidappukaran. S.79A(1) reads as follows:

(2.) The substantial question of law raised in the appeal is centered around S.79A(1) as extracted above and as to whether the courts below were justified in granting an injunction as prayed for by the plaintiff disentitling her the benefit in terms of the said section. It is also contended that if the structures were in existence prior to 1-1-1970, can the rights available in terms of S.79A(1) be denied

(3.) The specific pleadings in this case by the defendant appellant was that he undertook construction in plaint C schedule property in the year 1970. S.79A was introduced as per the Amending Act 35/1969 which came into force on 1-1-1970. Therefore, going by the Written Statement of the appellant, as on 1-1-1970, there was no such construction. But it is contended on his behalf that as per the evidence tendered in this case, he had been using C schedule property from time immemorial and the construction that had been mentioned in the Written Statement was the reconstruction or repair and not the initial construction. Therefore, the Trial Court ought to have found that he was entitled to the benefit of S.79A, disentitling the plaintiff the injunction granted. But, the specific question of law raised by the appellant as question No.3 in the appeal is as