IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 CRP.No. 887 of 2008 ----------------------------- AA.NO.69/2000 OF APPELLATE AUTHORITY (LR), ALAPPUZHA, OA.NO.80/1986 OF LAND TRIBUNAL, PALAI. .................... REVISION PETITIONERS/APPELLANTS: -------------------------------------------------------- 1. GOPALAN GOURI, MUKKIRIKKATTU, KIZHAKKUMBHAGOM, CHIRAKKADAVU. 2. GOPALAN LEELA, MULAYARIL, MAMALA HOUSE, KIZHAKKUMBHAGOM, CHIRAKKADAVU. BY ADV. MR.T.M.ABDUL LATHEEF. RESPONDENT/RESPONDENT: ------------------------------------------- GEORGE THOMAS, MADATHIPARAMBIL, KIZHAKKUMBHAGOM, CHIRAKKADAVU. BY ADV. MR.GEORGE KARITHANAM VARGHESE, MR.V.J.JOHN. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON 18/03/2010 PASSED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- CRP No.887 of 2008 ------------------------------------- Dated 18th March 2010 Order In this Revision filed under S.103 of the Kerala Land Reforms Act, the respondents before the Land Tribunal call in question, the order passed by the Tribunal as confirmed by the Appellate Authority. By virtue of the impugned order, the applicant has been granted kudikidappu right under S.80B of the Kerala Land Reforms Act (hereinafter referred to as 'the Act'). 2. The parties and exhibits are hereinafter referred to, as they are available before the Land Tribunal. Invoking the right under S.80B of the Act, the applicant laid a petition before the Land Tribunal, Pala, claiming kudikidappu right in the property comprised in Survey No.2379/4 of Chirackadavu Village in Kanjirappally Taluk. The application was resisted by the respondents, pointing out that the claimant was a trespasser and he is not CRP 887/08 2 entitled to claim kudikidappu right over the property in question. Before the Land Tribunal, evidence was adduced by both sides. The Land Tribunal found that the applicant was in occupation of the property and satisfied the definition of 'kudikidappu' under the Act and accordingly allowed the application. 3. The land owners carried the matter in appeal as AA No.69/00. The Appellate Authority, after an independent evaluation of the evidence, confirmed the order of the Land Tribunal. 4. The learned counsel for the revision petitioners mainly raised two contentions before this Court : 1. There is no evidence to show that the applicant was in possession of the property before 1983 ; and 2. There is nothing to show that the applicant was in actual occupation of the building as on the date of filing of the application. 5. The learned counsel for the respondent, on the other hand, pointed out that the Authorities below have considered the matter in considerable detail and has come CRP 887/08 3 to the conclusion that the applicant was in occupation of the building as claimed by him and the structure is a hut as defined under the Act. The claim of the applicant that at best, he is entitled to own 2½ cents, has no support in law. May be that the original land owner executed a deed in favour of her children, settling 2.5 cents in favour of each of them. That was subsequent to the occupation of the hut in question by the applicant. If that be so, according to the learned counsel, S.80A(12)(c) of the Act would be attracted. 6. As rightly pointed out by the learned counsel for the respondent, the Authorities below have considered the evidence in detail and have come to the conclusion that the applicant before the Land Tribunal is a kudikidappukaran. The petition had a checkered carrier. Initially, the Land Tribunal, Pala allowed the application. An appeal was preferred before the Appellate Authority. Initially, the appeal was filed before the Appellate Authority, Alappuzha. That was transferred to Thrissur and again, it CRP 887/08 4 was re-transferred to Alappuzha. 7. The first respondent before the Land Tribunal is the actual owner of 23 cents of land as could be seen from Ext.B1 document before the Land Tribunal. According to the applicant, he has been in occupation of the property since 1979 and he was residing in a hut put up in that property, which satisfies the definition of a 'hut' as contemplated under the Act. It appears that in 1983, the predecessors in interest of the 1st respondent before the Land Tribunal executed a document, whereby 2.5 cents of land was assigned to each children. The property was comprised in Survey No.2379/4 of Chirakkadavu village in Kanjirappally taluk. The land owners disputed the contention of the applicant that he had been in occupation of the property since 1979. According to them, the applicant trespassed into the property in 1983 and at best, he is entitled to only 2.5 cents of land which fell into the share of the respondent before the Land Tribunal. Another contention is that the land owners had produced a CRP 887/08 5 document before the Appellate Authority, which was not considered. 8. Before the Land Tribunal, the applicant examined himself as PW1 and another person, PW2 was also examined. The building in respect of which the claim was laid, had the number 304 in Ward No.X of Chirakkadavu Panchayat. The applicant produced Ext.A1, which is the certified copy of the relevant portion of the Building Tax Register of Chirakkadavu Panchayat for the period from 1983-84 to 1987-88. It shows that the building in question is owned by the first counter petitioner before the Land Tribunal. The said document also showed that the applicant was in occupation of the building. 9. The depositions of PWs 1 and 2 was to the effect that the cost towards the construction of the hut in the property in question, was Rs.300/- at the relevant time and that the applicant is a kudikidappukaran. 10. The main argument advanced by the learned counsel for the revision petitioners before the Appellate CRP 887/08 6 Authority was that they had produced a document which would show that the claim of the applicant was untrue, but that document was not considered by it. 11. In order to ascertain whether the petitioners had any real grievance, this Court perused the said document, which is the extract of the building tax assessment register for the period 1992-93. It is for the period long after 1983. One fails to understand, of what help it could be to the revision petitioners. True, a letter was also issued to the revision petitioner stating that the building tax assessment register for the period 1982-83 was not available with the Panchayat. One may also doubt as to how far the above claim could be true. 12. RW1, who was examined on behalf of the land owners admitted that the applicant had been residing in the premises at least for three years. However, it is surprising to note that the land owners took no steps to have the applicant evicted from the premises. It is unnatural and unusual. True, the applicant has not CRP 887/08 7 produced any documents to show that he was in possession of the property from 1979 onwards. But, there is evidence to show that he has been in occupation of the building involved in the proceedings at least from 1983 onwards. 13. The main contention urged before this Court is that the property which had larger extent was the subject matter of gift by the first appellant before the lower Appellate Authority by document No.1948/83 dated 20.05.1983, settling 2.5 vents in favour of each of his children. Therefore, even assuming that the applicant is entitled to kudikidappu right, he can get only 2.5 cents. Both the Authorities below have considered this question in detail and has come to the conclusion that the applicant had been in occupation of the hut in question, prior to 20.05.1983, ie., prior to the gift deed. If that be so, as rightly pointed out by the learned counsel for the respondent in this RP, S.80A(12)(c) of the Act is attracted and the orders of the Authorities below are fully justified. CRP 887/08 8 The result is that this CRP is devoid of any merits and it is liable to be dismissed. I do so. P.BHAVADASAN, JUDGE sta CRP 887/08 9