IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 SA.No. 195 of 1996() ----------------------------- AS.399/1986 of ADDL.DISTRICT COURT,KOTTAYAM OS.558/1978 of PRL.M.C., KOTTAYAM .................... APPELLANT/RESPONDENT NOT A PARTY: -------------------------------------------------------------- THOMAS P., CHACKO @ TOMY, KOLLEMKERIL HOUSE, AYMANAM P.O., KOTTAYAM. BY ADV. MR.MATHEW JOHN. RESPONDENT(S): -------------------------- *1. AMMINI VELAYUDHAN, KONCHIRA HOUSE, NEAR KALLUMDA BRIDGE, AYMANAM P.O., KOTTAYAM. *(DIED) **2. MATTI, W/O.THOMAS, KOLLAMKERIL HOUSE, AYMANAM P.O., KOTTAYAM. **(DIED) * APPELLANT IS RECORDED AS THE SOLE LEGAL HEIR OF DECEASED R2, VIDE ORDER DATED 22/09/2004 ON I.A.1849/2004. ** ADDL. R3 TO R7 IMPLEADED ADDL. R3: P.V. SABU, S/O.VELAYUDHAN, STEEL CRAFTS SALES OFFICE, 64/A, MANAGANLAL BLDG., 2ND FLOOR, 1ST KUMBHARWADA LANE, MUMBAI-400 004. ADDL. R4: P.V. SHAJI, S/O.-DO-., KONCHIRA HOUSE, AYMANAM POST, KOTTAYAM. ADDL. R5: SURYAKUMARI, W/O.MADHAVAN, D/O. -DO- -DO-. ADDL. R6: P.V. OMANA, D/O. -DO- -DO-. SA.No. 195 of 1996 ADDL. R7: SULEKHA, D/O. -DO- -DO-. ** ADDL. R3 TO R7 ARE IMPLEADED AS LR'S OF DECEASED R1, VIDE ORDER DATED 26/03/2009 IN I.A.2611/2008. R3, R5 TO R7 BY ADV. MR.RAM MOHAN.G. , MR.G.P.SHINOD, MR.MANU V. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T No representation. This appeal is dismissed for default. 16/02/2010. SD/- P.BHAVADASAN, JUDGE ORDER ON C.M.P. NO.556/1996 IN S.A. NO.195/1996 DISMISSED 16/02/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.BHAVADASAN, J. ------------------------------------- SA No.195 of 1996-F ------------------------------------- Dated 8th July 2010 Judgment The plaintiff in OS No.558/78 before the Munsiff's Court, Kottayam, is the appellant. During the pendency of the appeal, both the respondents died and their legal heirs have been brought on the party array as respondents 3 to 7. 2. According to the plaintiff, the plaint schedule building was let out to the defendant as per document dated 1.2.1975 at a monthly rent of Rs.25/-. Rent was paid only till 1979 and thereafter it was kept in appears. In spite of lawyers' notices, rent was not paid and vacant possession was not given. Hence the suit. 3. The defendant resisted the suit, taking the contention that she is entitled to kudikidappu right under the provisions of the Land Reforms Act. She also disputed the lease arrangement pleaded by the plaintiff. It appears SA 195/96 2 that the issue regarding kudikidappu was referred to the Land Tribunal by the Munsiff's Court, Kottayam. The Land Tribunal returned the matter, finding that the defendant is not entitled to kudikidappu rights. Accepting the said finding, the suit was decreed. 4. The defendant carried the matter in appeal as AS No.399/1986. The Appellate Court, on an evaluation of the materials before it, disagreed with the finding of the Land Tribunal and held that the defendant is entitled to kudikidappu rights. Accordingly, the appeal was allowed and the suit was dismissed. The said Judgment and decree are assailed in this appeal. 5. The only question that arises for consideration in this appeal is whether the defendant in the suit is entitled to kudikidappu rights. SA 195/96 3 6. The following questions of law are seen framed in the Second Appeal : “(a) Is not the lower appellate court in serious error in setting aside the order of the Land Tribunal on the sole ground that it conducted a local inspection of the plaint schedule building especially in the light of rule 137 of the Kerala Land Reforms (Tenancy) Rules 1970 and in the light of the fact that local inspection was not the sole ground for arriving at the decision and it was done only to assess and verify the evidence on record ? (b) Is not the lower appellate court in serious error in holding that the defendant is a kudikidappukari of the plaint schedule building which is only a portion of a larger building ? SA 195/96 4 (c) In the light of the specific undertaking by the defendant before the appellate court on the first occasion to take out a commission after remand, and in the light of the refusal of the defendant to do so, is not the appellate court in serious error in not drawing abuse inference against the defendant ? (d) Is not the lower appellate court in serious error in relying on a portion of the Revenue Inspector's report to find that the plaint schedule building was in existence from 1950 onwards in view of the fact that the said report cannot be relied upon. (e) Is not the lower appellate court in serious error in holding that Ext.A1 relates to the plaint schedule building and the rent SA 195/96 5 shown therein can be taken as the rent of the building in view of the fact that Ext.A1 is for the year 1955-56 whereas entrustment of the building even according to the defendant is only in 1967.” 7. The learned counsel for the appellant pointed out that the lower Appellate Court was not justified in taking a different view from that of the Land Tribunal. The solitary item of evidence relied on by the lower Appellate Court is Ext.A1. There is nothing to show that the said document relates to the building in question and the lower Appellate Court has omitted to take note of various facts which would conclusively show that the defendant is not entitled to the benefit under the Kerala Land Reforms Act. According to the learned counsel, there was ample evidence to show that the original building was pulled down and a new structure had been put up in its place, which fact has not been noticed by the lower Appellate Court. SA 195/96 6 8. The learned counsel drew the attention of this Court to an earlier order of remand by the District Court to the Trial Court wherein the defendant had undertaken to take out a commission to value the structure and that had not been done by the defendant. Therefore, the benefits under the Kerala Land Reforms Act should not have been extended to the defendant. 9. The learned counsel for the respondent on the other hand, pointed out that the lower Appellate Court has considered the matter in considerable detail and after analysing the evidence on record, has come to the conclusion that the structure in question is a hut, falling within the definition of S.2(25) of the Land Reforms Act and therefore, the defendant is entitled to kudikidappu rights. 10. The lower Appellate Court has analysed the evidence on record and has come to the conclusion that Ext.A1 produced by the defendant before the Land Tribunal related to a building involved in this proceedings and the rent shown there was only Rs.2/- per month. It is also SA 195/96 7 pointed out that even though the landlord claimed that the earlier building had been pulled down and a new building had been put up, he adduced no evidence in that regard. 11. Attention of this Court was also drawn to the fact that even though the report of the Revenue Inspector was found to be unacceptable, it opined that the structure is more than 30 years old. Viewed in that context, it can be easily seen that ext.A1 relates to the building involved in this proceedings. The evidence of RW2 would clearly show that the person by name Kunja, shown in Ext.A1 had been in occupation of the premises at the relevant time. The landlord had miserably failed to show that the defendant was in occupation of a new structure. Accordingly, it was contended that no grounds were made out to interfere with the judgment of the lower Appellate Court and that the appeal was without merits. 12. There appears to be considerable force in the contentions taken by the learned counsel for the respondents. True, it was solely based on Ext.A1 document SA 195/96 8 that the lower Appellate Court has come to a conclusion that the defendant is entitled to kudikidappu rights. It is also true that there was an earlier order of remand by the first Appellate Court to the Munsiff's court and it is seen observed therein that the defendant had undertaken to take out a commission to ascertain the value of the structure. It is not complied with. 13. It is seen from the records that Ext.A1 was among the records even at the time of passing the earlier order of remand. S.2(25) of the kerala Land Reforms Act reads as follows: “Kudikidappukaran” means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and - SA 195/96 9 (a)who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or (b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and “kudikidappu” means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto.” A reading of the above provision shows that a structure qualifies to be a hut if at the time of construction, its cost of construction did not exceed Rs.750 or the structure, at the time of construction, yielded a monthly rent not exceeding Rs.5/-. SA 195/96 10 14. The main contention taken by the appellant before this Court is that there is nothing to show that Ext.A1 relates to the building in question. It does not appear to be correct. The lower Appellate Court has considered this aspect in great detail and on the basis of the oral evidence adduced by the parties, has found that Ext.A1 relates to the period 1955-56. 15. On going through the evidence, it is seen that one Kunja had occupied the premises at one point of time. That would be clear from the reading of the evidence given by the witness examined by the appellant. It is significant to notice that the name of Kunja appears in Ext.A1 also. 16. However, it is seen that the lower Appellate Court had come to the conclusion that the structure would fetch only Rs.2/- per month based on the entry in column No.7 of Ext.A1. That column relates to tax for general purpose. It does not appear that Rs.2/- shown in column No.7 relates to the rent that the structure could fetch per SA 195/96 11 month. However, in column No.6 of Ext.A1, the annual value is shown as Rs.60/-. That obviously must be the annual rental value, which means the monthly rent is Rs.5/-. If that be so, the structure is a hut, coming within the definition already quoted above. 17. It has come out from the evidence of AW1 before the Land Tribunal that a portion of the structure occupied by her husband who had taken it on rent initially, had been demolished for widening a road and there is no suggestion to AW1 that either the old structure had been pulled down or that she was occupying a new structure. 18. Even though the appellant has a case that there were several structures in the property, he had not been able to substantiate it with acceptable evidence. 19. Merely because the respondent herein did not take up a commission to have the structure valued, it does not mean that she should be deprived of the benefit under the Land Reforms Act, if in fact, she was entitled to the same. The evidence also discloses that the name SA 195/96 12 entered in Ext.A1 in Column No.4 showing owner's name, is none other than that of the father of the appellant. The lower Appellate Court has considered the oral as well as the documentary evidence in detail and has come to the conclusion that the defendant in the suit is entitled to claim kudikidappu rights. 20. The appellant has not been able to show that the findings of the courts below are either perverse or is not warranted by the materials available on record. Under S.100 of CPC, unless it is shown that the findings are perverse or was totally unwarranted by the evidence on record, no interference is called for with the judgments and decrees of the courts below. No substantial questions of law arise for consideration in this appeal. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA 195/96 13 SA 195/96 14