IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 CRP.No. 500 of 2002(E) ---------------------- AA.140/1991 of APPELLATE AUTHORITY(LR),KOZHIKODE OA.42/1989 of LAND TRIBUNAL, TIRUR .................... REVN. PETITIONER(S): --------------------- AMMINI NESSIAR,D/O.MADHAVI NESSIAR, ELAMANYARUVEETTIL, RETIRED TEACHER,PURATHUR POST, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SMT.P.K.BEENA RESPONDENT(S): --------------- 1. CHANDRAN NAIR, S/O.JANAKI AMMA, ELAMANAYARUVEETTIL,PUTHUPALLY AMSOM, THRITHALLOOR DESOM, P.O.PUTHUPALLY,MALAPPURAM DISTRICT. 2. BHASKARAN NAIR,(DIED). -DO.- -DO- 3. KUNHUKUTTY NESSIAR, S/O. NARAYANI NESSIAR, ELAMANAYARUVEETTIL,PUTHUPALLY AMSOM, MUTHALLOOR DESOM,PUTHUPALLY P.O., MALAPPURAM DISTRICT. 4. THE APPELLATE AUTHORITY (LAND REFORMS), KOZHIKODE. 5. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 6. C.T.MADHAVIKUTTY, D/O.RAMAN NAIR,W/O.BHASKARAN NAIR, KOTTILIL HOUSE,MANGATTOOR P.O., PERUMPARAMBU,EDAPPAL, MALAPPURAM DISTRICT 679 576. (NAME OF R3 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DT.3.3.2008 ON THE MEMO DATED 13.2.2008 FILED BY COUNSEL FOR PETITIONER. GOVERNMENT PLEADER SMT.K.T.LILLY SRI.K.ABOOTTY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON 23.11.2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. No.500 of 2002 ----------------------------------------------- Dated 23rd November, 2011. O R D E R This Civil Revision Petition, under Section 103 of the Kerala Land Reforms Act (for short, 'the Act') is filed by the second respondent in O.A.42/89 on the file of the Land Tribunal, Tirur. The respondents 1 and 2 herein were the petitioners 1 and 2 in that O.A., which was filed by them under Section 80B of the Act for purchase of kudikidappu. The third respondent herein was the first respondent in that O.A. 2. In O.A.42/89, it is alleged that the petitioners are kudikidappukars residing in a house in R.S.No.50/5B, later on amended to R.S.50/4 in Purathur Panchayat, Malappuram District. According to them, their mother Janaki Amma took the site from the revision petitioner's mother about 40 years ago and with her permission constructed the house and have been residing there ever since. It is further alleged that after the mother's death, they are residing in this house. Therefore, they claimed before the Land Tribunal that they are entitled to assignment of the Kudikidappu in their favour. 3. The revision petitioner and the third respondent CRP 500/02 2 herein opposed the application for purchase of kudikidappu right and they contended before the Land Tribunal that the applicants are none other than the members of the same Tharawad and therefore, co-owners in respect of the property in which the house is situated. They pointed out that this property is not partitioned between the members of the Tharawad and is still a common tharawad property. They also pointed out that the house in this property is a tharawad house to which every member in the tharawad has a share and therefore, the applicants are entitled only to their shares in this house and the site. They further pointed out that the application is bad since all the affected members of the tharawad are not impleaded. 4. Before the Land Tribunal, on the side of the petitioners, Ext.A1, which is a copy of the partition deed of 1983 was marked. RW1 was examined on the side of respondents 1 and 2 and Ext.B1, which is the certified copy of adangal extract regarding resurvey No.50/3 and 50/4 of Puduppalli amsom was marked. Exts.C1 to C3 were also marked. The Land Tribunal, on considering the evidence on record, found that the petitioners are kudikidappukars under CRP 500/02 3 Section 2(25) of the Act and the status is decided accordingly. Against that order, respondents 1 and 2 filed A.A.140/1991 before the Appellate Authority (LR), Kozhikode and the appellate authority upheld the view of the Land Tribunal that the appellants are not co-owners in respect of the petition schedule house and remanded the matter to the Land Tribunal for the limited purpose of determining the status of kudikidappukars as the applicants have to satisfy the other conditions stipulated in Section 2(25) of the Act that they have no other land fit for erecting a homestead, the value and probable rent at the time of construction do not exceed the limit contemplated in the Act etc. Against that judgment, the second appellant filed O.P.14181/1993 before this Court, which was subsequently converted into C.R.P.500/02. 5. Heard learned counsel for the revision petitioner. 6. At the time of argument, learned counsel for the revision petitioner raised the following contentions : The appellate authority acted illegally in upholding the finding of the Land Tribunal that respondents 1 and 2 herein are not co- owners in respect of the property and the house. The appellate CRP 500/02 4 authority ought to have found that there are no sufficient averments in their application in support of the claim of the applicants as kudikidappukars. The appellate authority ought to have found that respondents 1 and 2 are only co-owners and cannot claim the right of kudikidappu in respect of the house and property belonging to the common tharawad. The appellate authority ought to have found that the person alleged by the applicants, at any rate, is not competent to give the property for erecting a homestead or for any other purpose. It ought to have found that the parties are governed by Marumakkathayam law at least at the time of the alleged demise. The appellate authority should have at least given an open remand allowing the Land Tribunal to reconsider the aspect as to whether the applicants are co-owners or not. 7. Before the Land Tribunal, the petitioners in the O.A. did not adduce any oral evidence. The only document produced by the petitioners is Ext.A1, which is a copy of the partition deed of the year 1983. When the second respondent in the O.A. was examined as RW1, she deposed that the property in survey No.50/4 is not partitioned and that property CRP 500/02 5 is remaining as a joint property and the Tharawad house was situated in that property and the house mentioned in the O.A. is not constructed with the permission of her mother and that property in which the house is situated belongs to the living members of the Thavazhi. 8. In the Revenue Inspector's report dated 28.3.1990 it is stated that as per village records, the land owner of the property in survey No.50/4 is Kinattukara Valappil Kalyani Nassiar. RW1 deposed that Kinattukara Valappil Kalyani Nassiar is the mother of the petitioner's mother Janaki Nassiar. As per Ext.B1 adangal extract, the name of the land owners of the property in resurvey No.50/4 are; (1) Kinattukara Valappil Kalliani Nassiar (2) Kinattukara Valappil Narayani Nassiar (3) Kinattukara Valappil Lakshmi Nassiar (4) Kinattukara Valappil Kunhamma Nassiar 9. In re-examination, RW1 deposed that Janaki Nassiar resided in the house as a sharer and not as an owner of the house. Nobody was examined on the side of the petitioners to prove that the disputed house is situated in the property CRP 500/02 6 partitioned as per Ext.A1 partition deed. On perusing the order of the Land Tribunal and the judgment of the appellate authority, it is seen that they have not considered the question whether the revision petitioner's mother was the owner of the property and whether she was competent to give permission to construct a house in the property. 10. Learned counsel for the revision petitioner submitted that the appellate authority should have found that even as per the report of the Special Revenue Inspector deputed by the Land Tribunal, the owner of R.S.50/4 in which the claim of kudikidappu is raised is one Kallyani Nassiar, who is the grandmother of the applicant. This can only mean that the applicants can only be the co-owners in respect of this property. It is without understanding and appreciating the correct legal position, the true affairs and circumstances of the case that the appellate authority illegally upheld the finding of the Land Tribunal to the effect that the applicants are not co-owners. 11. Considering the facts and circumstances of the case, I am of the view that there is no sufficient evidence to come to a definite finding regarding the question in dispute and CRP 500/02 7 that further opportunity should be given to the parties to adduce further evidence and for that purpose, the case has to be remanded to the Land Tribunal for fresh disposal in accordance with law after giving sufficient opportunity to both sides to adduce further evidence. 12. Accordingly, this Civil Revision Petition is allowed and the order in O.A.42/89 on the file of the Land Tribunal, Tirur and the judgment in A.A.140/1991 on the file of the Appellate Authority (LR), Kozhikode are set aside and the case is remanded to the Land Tribunal, Tirur for fresh disposal in accordance with law, after giving sufficient opportunity to both sides to adduce further evidence. Parties are directed to suffer their respective costs in this Civil Revision Petition. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.