IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 CMA.NO. 253 OF 2001() -------------------------------- (AGAINST A.S. NO.109 OF 1994 OF THE DISTRICT COURT, THRISSUR) APPELLANT(S) - RESPONDENTS - DEFENDANTS: ------------------------------------------------------------- 1. JOSE, S/O.KURUTHUKULANGARA KOOLA JOSEPH, AYYANTHOLE VILLAGE, THRISSUR TALUK. 2. AMMINI, W/O. JOSE, DO. DO. DO. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S) - RESPONDENTS - RESPONDENTS: ------------------------------------------------------------------ 1. MARTHA, W/O. LATE K.G. ITTIACHAN, KURUTHUKULANGARA HOUSE, AYYANTHOLE VILLAGE, THRISSUR TALUK. 2. MAGGY, D/O. LATE DO. DO. DO. 3. GEORGE, S/O. DO.DO. DO (DIED). 4. ANTONY, S/O. DO. DO. DO. 5. DOMINIC, S/O. DO. DO. DO. 6. JESSY, D/O. DO. DO. DO. DO. 7. SABURAJ, S/O. DO. DO. DO. 8. JAMES, S/O. DO. DO. DO. 9. JENNY, S/O. DO. DO. DO. ADDITIONAL RESPONDENTS IMPLEADED: ---------------------------------------------------- 10. PAULIN, W/O. LATE GEORGE, PHARMACHIST, E.S.I. DISPENSARY, CHERUVANNUR KOZHIKODE DISTRICT. 11. SISIRA, MINOR, D/O. LATE GEORGE RESIDING WITH HER MOTHER AND GUARDIAN PAULIN, DO. DO. DO. 12. HARITHA, MINOR, D/O. LATE GEORGE, DO. DO. DO. 13. HEMANTH, MINOR, D/O. LATE GEORGE, DO. DO. DO. ADDITIONAL RESPONDENTS 10 TO 13 ARE REPRESENTED BY THEIR MOTHER SMT.PAULIN (R.10). ADDITIONAL RESPONDENTS 10 TO 13 IMPLEADED AS THE L.RS. OF THE DECEASED R3 VIDE ORDER DATED 9.8.06 IN I.A. 1350 OF 2006. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE FOR R1TO9 BY ADV. SMT. PRABHA R. MENON, ADV. SHRI KODOTH PUSPARAJAN ADV. SHRI M.KRISHNAKUMAR & ADV. SHRI JAYESH MOHANKUMAR THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 23.3.2009 THE COURT ON 03/04/2008 DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = C.M.A. No.253 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of April, 2009 J U D G M E N T ---------------------- The legal battle between the direct brothers over a small building having plinth area of 884 sq.ft. and consisting of 7 rooms and a Veranda with tiled roof situated in 13 cents originally within the local limits of Ayyanthole Panchayat but now within the Corporation of Thrissur is before this Court for the second time in the form of Civil Miscellaneous Appeal, this time at the instance of the defendants in the suit. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Plaintiff and defendant No.1 are the children of late Martha and Ouseph. (Plaintiff died during the pendency of the first appeal. His legal representatives were impleaded). Defendant No.2 is the wife of defendant No.1. Suit property with the building belonged to late Martha as per assignment deed No.3011/1106 M.E. Plaintiff claimed to have purchased it as per Ext.P1, assignment deed No.2957/68 at a time when his parents and along with them defendant No.1 was staying in the building. While taking assignment of the property as per Ext.P1, a limited right was provided for the parents to stay in the building and to take yield from the property during their lifetime. C.M.A. No.253 of 2001 -: 2 :- While so, plaintiff availed a loan of Rs.6,000/- from defendant No.1 as per a demand promissory note and Ext.P2, agreement was executed regarding payment of interest and repayment of the amount. After the death of parents in the year 1983, plaintiff issued notice to the defendants demanding them to vacate the building. They sent reply denying the right of the plaintiff. Hence the suit for eviction. Defendants contended that the property belonged to late Martha but it is not true that plaintiff purchased it as per Ext.P1. Parents did not intend to convey right, title and interest over the property as per Ext.P1. Plaintiff owed defendant No.1 Rs.6,000/- as per a demand promissory note. That liability is not discharged. Defendant No.1 is entitled to stay in the building till the liability under the promissory note is discharged. After the death of the father, plaintiff agreed to sell the suit property to defendant No.1 for a consideration of Rs.25,000/-. Defendants have no other house to reside or any land to construct a house. Cost of construction of the building in the suit property at the time of its construction was less than Rs.300/- and the rent that building would have fetched then was less than Rs.2/-. Hence defendant No.1 has right of kudikidappu in the building. Learned Sub Judge framed issue among others whether defendant No.1 has kudikidappu right in the building. That issue was referred to C.M.A. No.253 of 2001 -: 3 :- the Land Tribunal for finding. Revenue Inspector appointed by the Land Tribunal submitted Exts.C1 and C2, reports. Plaintiff filed objection to those reports and requested appointment of an Advocate Commissioner to assess the cost of construction. Accordingly an Advocate Commissioner was appointed and he submitted Ext.C3, report. Parties adduced evidence before the Land Tribunal. Land Tribunal accepted the reports submitted by the Revenue Inspector and found that the building satisfied the requirement of 'hut' as defined in Section 2(25) of the Kerala Land Reforms Act (for short, “the Act”) and that defendant No.1 has right of kudikidappu in that building. Learned Sub Judge accepted that finding and dismissed the suit without going into the other issues. Plaintiff took up the matter in appeal, A.S. No.109 of 1994. Learned District Judge as per judgment dated 25.11.1998 concurred with the finding of the Land Tribunal that the building satisfied the requirement of 'hut' but observed that plaintiff was not in 'lawful' possession of the building at the time he is said to have granted permission to defendant No.1 to occupy the said building in that at the relevant time it was the parents (late Martha and Ouseph) who were in lawful possession of the said building and hence plaintiff could not have granted permission to defendant No.1 to occupy the building. Learned District Judge observed that defendants C.M.A. No.253 of 2001 -: 4 :- were staying along with late Martha and Ouseph in the building. Learned District Judge also considered the question whether plaintiff could have granted permission to defendant No.1 to occupy the building after the death of the parents in the year 1983 and, relying on the decision in Mohammed v. Abdulla (1997 (1) KLT 410) held that no kudikidappu could be created after 1.1.1970. Consequently it was found that defendant No.1 has no right of kudikidappu in the building. Since the Learned Sub Judge did not answer the other issues framed the case was remanded to the trial court for decision on those issues. That judgment was challenged by defendant No.1 in this Court in C.M.A. No.46 of 1999. This Court as per judgment dated 23.2.2001 set aside the judgment of the first appellate court and directed the first appellate court to consider the appeal afresh. Learned District Judge considered the appeal again and as per judgment dated 30.6.2001 found that the plaintiff gave permission to defendant No.1 to reside in the building as per Ext.P2, agreement dated 24.9.1968, the building did not satisfy the requirements of a 'hut' as defined in Sec.2(25) of the Act and hence defendant No.1 is not entitled to any right of kudikidappu in the said building. Resultantly, appeal was allowed and the case was remitted to the trial court for a decision on other issues. That judgment is under under C.M.A. No.253 of 2001 -: 5 :- challenge in this Civil Miscellaneous Appeal at the instance of defendant Nos.1 and 2. 3. The following substantial questions of law are raised for a decision: “(a) When the Land Tribunal found the 1st appellant as kudikidappukaran and the house as hut in R.C.10/87 which was confirmed by the appellate court in A.S.109/94, can this finding be upset by this Honourable Court except for the reason of deciding erroneously a question of law by the appellate court? (b) After having confirmed the factual finding that the 1st appellant is a kudikidappukaran, the finding was set aside by the appellate court only for the reason that permission was given to occupy the building after 1.1.70 and this Hon'ble High Court remanded the case for fresh consideration of the question of kudikidappu, can the appellate court again re-appreciate the evidence and reverse the finding of fact after remand? (c) Is re-appreciation of evidence at the third tier of the litigation permissible? Is not such re-appreciation of evidence leads to a plain injustice in law to one of the parties? C.M.A. No.253 of 2001 -: 6 :- (d) When the remand was ordered by this Hon'ble Court to consider the question of kudikidappu setting aside the appellate order only on a question of law, can the appellate court re-consider the facts and re-appreciate the evidence after remand and came to a contrary finding on fact. (e) Does not the valuation report of the building made by an authorised officer appointed under Section 105 of the Kerala Land Reforms Act command more credibility than any other information collected. (f) When the Land Reforms Act enacted primarily to protect the interests of tenants and kudikidappukars, they being the weaker sections of Society, is it not necessary for authorities dealing with their cases to take a liberal view in their favour? (g) Whether permission was granted to defendant No.1 to occupy the house as understood in Sec.2(25) of the Kerala Land Reforms Act? 4. Learned counsel for defendant Nos.1 and 2 contended that the first appellate court as per judgment dated 25.11.1998 had confirmed the finding of the Land Tribunal that the building satisfied C.M.A. No.253 of 2001 -: 7 :- the definition of 'hut' as per Sec.2(25) of the Act, that finding was not interfered with by this Court in C.M.A. No.46 of 1999 and hence the first appellate court was not correct in reconsidering the issue after remand of the case to the first appellate court. It is also contended by the learned counsel that the only ground on which first appellate court (as per judgment dated 25.11.1998) negatived the finding of the Land Tribunal regarding kudikidappu was that defendant No.1 was granted permission to occupy the building after 1.1.1970 and kudikidappu could not be created after 1.1.1970 in view of the decision in Mohammed's case (referred supra), and that finding having been set aside, the only issue pertaining to the claim of kudikidappu available before the first appellate court after the judgment of this Court in C.M.A. No.46 of 1999 was whether kudikidappu could have been created after 1.1.1970. Hence also appellate court was not justified in reconsidering the issue whether the building satisfied the definition of 'hut'. Learned counsel then contended that at any rate, first appellate court was not justified in preferring Ext.C3, report of the Advocate Commissioner to Exts.C1 and C2, reports submitted by the Revenue Inspector who is the authorised officer under Sec.105 of the Act. Learned counsel contended that without setting aside Exts.C1 and C2 Land Tribunal was not justified in appointing an Advocate C.M.A. No.253 of 2001 -: 8 :- Commissioner and calling for report (Ext.C3). Learned counsel placed reliance on the decision in Premananda Bharathi v. Yogananda Bharathi (1985 KLT 144). 5. Per contra it is contended by learned counsel for supplemental plaintiffs that as per judgment dated 23.2.2001 in C.M.A. No.46 of 1999 judgment of the first appellate court dated 25.11.1998 stands set aside and the appeal remitted to the first appellate court for reconsideration though with certain directions and hence it was well within the power of the first appellate court to examine the whole issue regarding kudikidappu. Learned counsel also contended that the whole idea of providing right to kudikidappu under the Act was to benefit the landless agricultural labourers who were permitted to occupy small huts in the agricultural land of the landlord and that while interpreting Sec.2(25) of the Act, court must venture for a purposive interpretation bearing that objective in mind. Learned counsel relied on the decisions in Narayanan Nair v. State of Kerala (1970 KLT 659 (F.B.) (Paras 58-60) and Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli (2007) 6 SCC 81). It is also contended by the learned counsel that going by Ext.P2, it was only an agreement regarding repayment of the loan and C.M.A. No.253 of 2001 -: 9 :- it cannot be understood as granting 'permission' to defendant No.1 to occupy the building in the way the word is understood in Sec.2(25) of the Act. Learned counsel placed reliance in Srinivasan Embrandiri v. Krishnan Namboodiri (1975 KLT 28) and Victoria v. K.V.Naik (1997) 6 SCC 23). 6. I must first understand the scope of the judgment of this Court in C.M.A. No.46 of 1999. That appeal arose from the judgment of the learned District Judge, dated 25.11.1998 in A.S. No.109 of 1994. In that judgment, learned District Judge confirmed the finding of the Land Tribunal as to the cost of construction and the rent the building would have fetched at the time of its construction. Learned District Judge took the view that since as per Ext.P1 a life estate was created in favour of the parents to reside in the building till their death, plaintiff could not be said to have been in “lawful possession” of the building during the lifetime of the parents and hence he could not have granted permission to defendant No.1 to occupy the building. Learned District Judge proceeded to consider whether permission could have been granted to defendant No.1 after the death of parents in the year 1983 and held that after 1.1.1970 no kudikidappu could be confirmed. This Court while deciding C.M.A. No.46 of 1999 observed that the view of the learned District Judge that no C.M.A. No.253 of 2001 -: 10 :- kudikidappu could be created after 1.1.1970 cannot stand in the light of the Bench decision in Maniyan v. Ramachandran (1999 (3) KLT 86). This Court then proceeded to consider the question whether at a time when the parents were occupying the building it was lawful for the plaintiff to grant permission to defendant No.1 to occupy the said building. This Court observed in paragraph 8 of the judgment that the parents were in possession only on the basis of a reservation (in Ext.P1) and that but for that reservation ownership and possession vested with the plaintiff and hence plaintiff was competent to give permission to defendant No.1 to occupy the building. Therefore the claim of kudikidappu cannot fail on the ground that plaintiff was not in a position to give such permission. In paragraph 8 of the judgment this Court observed that: “....But still, if Ext.P2 can be understood as giving permission to occupy so long as the amount under the promissory note was not repaid, it can give rise to claim for kudikidappu right. During the lifetime of the parents, the first defendant's residence with them cannot amount to occupation.....” (emphasis supplied) C.M.A. No.253 of 2001 -: 11 :- In paragraph 9 of the judgment this Court observed that: “As already noted, learned District Judge has accepted the finding of the Tribunal that the cost of construction of the building did not exceed Rs.750/- at the time of construction. He has also accepted the finding that it would not have fetched a rent exceeding Rs.5/-. But the learned District Judge has not analysed the case himself. As the first appellate court, the District Judge is competent to examine the correctness of the decision of the Land Tribunal by going into the evidence in the matter. The learned District Judge was proceeding on the basis that the kudikidappu claim was not in any case tenable in the light of the decision in Mohammed v. Abdulla (1997 (1) KLT 410). The matter actually requires a fresh consideration on the part of the District Judge”. In paragraph 11 of the judgment (in C.M.A. No.46 of 1999) this Court directed that: “....the order of remand passed by the learned District Judge is set aside. The appeal A.S.109/94 is remanded for fresh consideration C.M.A. No.253 of 2001 -: 12 :- by the learned District Judge. The District Judge will proceed on the basis that there is no bar for a kudikidappu right coming into existence after 1970 and that the plaintiff was competent to give permission to the first defendant to occupy the building and the first defendant to claim kudikidappu if he satisfies the other requirements. But the District Judge will reconsider the question whether the plaintiff has given such permission by Ext.P2 or otherwise and whether the value of the building and other factors for claiming a kudikidappu right are satisfied.....” (emphasis supplied) In the light of the above observations I am unable to accept the contention of the defendants that after the judgment of this Court in C.M.A. No.46 of 1999, what survived for consideration on the issue of Kudikidappu by the learned District Judge was only whether the plaintiff granted permission to defendant No.1 to occupy the building in question after the death of the parents in the year 1983. As such the learned District Judge is justified in reconsidering the whole issue regarding claim for kudikidappu. 7. As to the finding of the learned District Judge in the C.M.A. No.253 of 2001 -: 13 :- judgment under challenge that the cost of construction is more than Rs.750/- and it is not shown that the rent the building would have fetched at the time of construction is less than Rs.5/- learned counsel for the defendants contended that learned District Judge was not justified in law or on facts in placing reliance on Ext.C3, report of the Advocate Commissioner in preference to Exts.C1 and C2, reports of the Revenue Inspector (authorised officer) under Sec.105 of the Act. It is in this connection that learned counsel placed reliance on Premananda Bharathi's case (referred supra) to contend that without setting aside Exts.C1 and C2, reports, the Land Tribunal could not have appointed an Advocate Commissioner to inspect the properties. 8. That contention I am afraid, cannot stand. After referring to the decision in Premananda Bharathi's case a learned Single Judge of this Court held in Sivaraman v. V.C. Narayanan (AIR 1987 Ker. 156) that if the report of the first Commissioner is found to be deficient on any point, the proper course would be to direct the same Commissioner to remedy the defects and that court has the power to do so. It is not correct to say that under no circumstance without setting aside an earlier report, the court can issue a second commission or the same Commissioner to note details C.M.A. No.253 of 2001 -: 14 :- omitted in the first report. Another learned Single Judge of this Court in K.L.D. & M.M. Board Ltd. v. Achuthan (2001 (2) KLT 440) stated that for the ends of justice court can issue a second commission even without setting aside the first report. It is therefore not as if Land Tribunal was powerless to appoint a second Commissioner under any circumstance whatsoever without setting aside the earlier reports (Exts.C1 and C2) submitted by the Revenue Inspector. 9. Revenue Inspector who submitted Exts.C1 and C2 was examined as C.W.1. Exhibit C1, the first report does not contain any datas, nor even the cost of construction. In Ext.C2, second report the Revenue Inspector (C.W.1) has of course given his assessment of the cost of construction of the building as on the time of construction. But it is seen that even Ext.C2 is not sufficient in details in that apart from merely stating about the amount said to be spent by way of labour charges, it is not stated how many labourers were required and what was the labour charge per head. Same is the situation so far as the building materials used (except of course certain items). C.W.1 stated in Ext.C2 that the cost of construction is Rs.701/-. In Exts.C1 and C2 the Revenue Inspector (C.W.1) stated that the building was constructed about 30 years before his inspection making use of the building materials collected from another 60 year old building. C.M.A. No.253 of 2001 -: 15 :- Revenue Inspector (C.W.1) also stated that the rafters, etc., of the building were found to be in a dilapidated condition. Plaintiff filed objection to Ext.C2 and requested the Land Tribunal to depute an Advocate Commissioner to assess the cost of construction since according to the plaintiff, Revenue Inspector (C.W.1) had expressed difficulty to report on the cost of construction at the relevant time. It is in that circumstance that the Land Tribunal appointed C.W.2 as Commissioner and he in turn submitted Ext.C3, report which gives better information as to the cost of construction than Exts.C1 and C2. What the Land Tribunal has done is to call for better information as to the disputed point which in the light of the decisions in Sivaraman's case and K.L.D. & M.M. Board Ltd's case (referred supa) can be justified even without setting aside Exts.C1 and C2. There is also no rule that the report of the Advocate Commissioner cannot be preferred to the report submitted by the Revenue Inspector who is the authorised officer under Sec.105 of the Act. 10. It is contended by the learned counsel for defendants relying on the decision in Kunjama v. Velayudhan (1988 (1) KLT 121) that the learned District Judge was not justified in upsetting the finding of the Land Tribunal as to the cost of construction of the building. This decision was referred to by the learned counsel to C.M.A. No.253 of 2001 -: 16 :- buttress his contention that re-appreciation of the evidence at a three tier stage is not warranted. But, after referring to the judgment in C.M.A. No.46 of 1999 (see paragraph 9 of the judgment) I stated that this Court had found that the learned District Judge has not analysed the case himself as to the cost of construction and the matter actually requires fresh consideration on the part of the learned District Judge. Therefore there is no scope for application of the decision relied on by the learned counsel for the defendants. It is settled position of law that the first appellate court is entitled to consider the evidence including the evidence recorded by the Land Tribunal on the issue referred and come to its own conclusion. 11. It is seen that the learned District Judge has considered Exts.C1 to C3 and the evidence of C.Ws.1 and 2. Learned District Judge was of the view that cost of construction assessed by the Revenue Inspector is not satisfactory in that he has no much idea about the time of construction of the building and that he does not know the quantity of building materials used for the construction. Nor had he measured the plinth area of the building and the walls. It is after a detailed consideration of the evidence on record that the learned District Judge accepted Ext.C3 and the evidence of C.W.2, the Advocate Commissioner to hold that the cost of construction of the C.M.A. No.253 of 2001 -: 17 :- building was Rs.2430.54. In this appeal no interference with that finding of fact is required as that finding is neither illegal nor perverse. That finding rested on a proper appreciation of the evidence on record. 12. So far as the rent which the building would have fetched at the time of its construction is concerned, there is no reference in Exts.C1 to C3 to that. According to the defendants the rent the building would have fetched is less than Rs.2/- on the date of construction. In this appeal, at the instance of the defendants this Court directed (C.M.P. No.4183 of 2001) the Secretary, Corporation of Thrissur to issue certified copies of the assessment register in respect of the building for the period from 1970-75 onwards. Pursuant to that order defendants obtained from the local authority and produced two documents; one, a