IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 CRP.No. 1234 of 2000(G) ----------------------- AA.181/1998 of APPELLATE AUTHORITY (LR), ALAPPUZHA SMO16/1994 OF LAND TRIBUNAL, KOLLAM .................... REVN. PETITIONER(S)/APPELLANT/ RESPONDENT: --------------------- BISHOP OF KOLLAM CATHOLIC DIOCESE REP. BY HIS POWER OF ATTORNEY HOLDER REV.FR.JAMES PUTHENPURA, BISHOPS HOUSE, KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROY CHACKO RESPONDENT/RESPONDENT/ APPLICANT : -------------------------------------------- 1. MAGI FERNANDEZ, ST.MARTIN PARAMBU, TANGASSERI, KOLLAM. * ADDL.R2 IMPLEADED STATE OF KERALA REP. BY SECRETARY, DEPARTMENT OF LAND REVENUE, THIRUVANANTHAPURAM IS IMPLEADED AS ADDITIONAL 2ND RESPONDENT IN THE CAE VIDE ORDER DT.7/2/02 IN CMP 527/02 ADV. SRI.A.P.CHANDRASEKHARAN SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ C.R.P.NO.1234 OF 2000 ------------------------------------------ Dated 28th January 2010 O R D E R First respondent filed an application before Land Tribunal, Kollam claiming that she has been in possession of 19 cents of property in survey No.254/352 of Kollam district contending that she and her predecessors have been in possession of that property as tenants for more than 150 years and she is entitled to fixity of tenure and hence suo motu proceedings is to be initiated to assign its jenm right. It was submitted on 20/1/1994. Based on it a report was submitted by Revenue Inspector dated 19/2/1994 that first respondent has been in possession of 19 cents and she and her predecessors have been in possession of Crp 1234/00 2 the property as per an oral lease for the last 150 years and it is enclosed by a fence and consists of 13 coconut trees, six coconut saplings and four jack trees and she is the tenant of that property. Land Tribunal initiated suo motu proceedings under Section 72 C of Kerala Land Reforms Act and issued notice to revision petitioner the Bishop of Kollam. Petitioner appeared before the Land Tribunal and filed objection to the report of the Revenue Inspector and also filed a written statement contending that church has been in possession of the property and the church constructed a building and the predecessors of the first respondent were staying in the building with the permission of the church and it is the Diocese which Crp 1234/00 3 had effected valuable improvements in the entire property and it is in their possession and they are taking the income and first respondent is not entitled to get assignment of the jenm right. It is also contended that report of the Revenue Inspector is not correct and first respondent influenced the Inspector and obtained the report. 2. Before the Land Tribunal first respondent has examined as PW1 and a witness was examined as PW2. Petitioner also examined two witnesses. Land Tribunal on the evidence found that first respondent is a tenant entitled to fixity of tenure and therefore, assigned jenm right in respect of 19 cents to the first respondent. Petitioner challenged the order Crp 1234/00 4 before Appellate Authority, (Land Reforms), Alappuzha in A.A.181/1998. Appellate Authority on re-appreciation of the evidence dismissed the appeal. It is challenged in the revision petition. 3. Learned counsel appearing for the revision petitioner and first respondent were heard. 4. First respondent is claiming to be a tenant of 19 cents of the property. Claim is based on Exts.A2 and A1, alleging that apart from that land obtained for construction of the building, the surrounding property has also been in the possession of the predecessors in interest of the first respondent and the first respondent and therefore, she is entitled to fixity of tenure. Contention of the Crp 1234/00 5 petitioner is that at best first respondent could only claim kudikidappu right as Ext.A2 shows that 3x4 six feet kols area was obtained for constructing a building to reside for a period of ten years, which was extended for a further period of ten years by Ext.A2 and only that right was subsequently transferred under Ext.A1 and there was no lease of any other land and hence first respondent is not a cultivating tenant entitled to fixity of tenure. 5. Learned counsel appearing for first respondent submitted that definition of a tenant under Sub Section 57 of Section 2 is inclusive of holder of a kudiyirappu under clause (h). Under Sub Section 26 of Section 2 Kudiyirippu means a holding or Crp 1234/00 6 part of a holding consisting of the site of any residential building, the site or sites of other buildings appurtenant thereto such other land as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does include a kudikidappu. Even if it is taken that, by Ext.A2 only the land provided therein was obtained for construction of a residential building, first respondent may be entitled to claim kudiyirippu right and therefore, the order of Land Tribunal permitting first respondent to purchase jenm right is perfectly correct. 6. Learned counsel appearing for the petitioner pointed out that by Exts.A1 and A2, only an extent of 3x4 six feet kol Crp 1234/00 7 area was given for construction of the building and first respondent, at best would claim only the right over that building and the right at best could only be the right of kudikidappu as defined under Sub Section 25 of Section 2 of Kerala Land Reforms Act and first respondent cannot be a tenant as defined under Sub Section 57 of Section 2 and therefore, the order is not sustainable. It is also pointed out that when examined as PW1, first respondent admitted that she is claiming right over the property obtained on ground rent as stated in Ext.A2 and therefore, she is not entitled to claim jenm right over 19 cents of property on the basis that she is a cultivating tenant. 7. On going through the order of Crp 1234/00 8 the Land Tribunal and the Appellate Authority, it is clear that the crucial question was not considered by the Land Tribunal. 8. First respondent is claiming tenancy right based on Exts.A1 and A2. Ext.A2 and A1 only show that an extent of 3x4 six feet land was obtained by the predecessors in interest of first respondent for construction of a residential building. If first respondent is entitled to claim that it is a kudiyirippu right as defined under Sub Section 26 of Section 2, she would be a tenant as defined under Section 2(57) as tenant includes a kudiyirippu under clause (h) therein. On the other hand, if it is a kudikidappu right, first respondent Crp 1234/00 9 could only claim right to purchase the kudikidappu. If it is kudikidappu, first respondent may be entitled to get either three cents, five cents or 10 cents, depending on whether the land was within the Corporation or Municipality or Panchayat, on the date when Kerala Land Reforms Amended Act 35 of 1969 came into force on 1/1/1970. These are facts which are to be decided by the Land Tribunal. If Land Tribunal finds that it is kudiyirippu and therefore, first respondent is a tenant entitled to fixity of tenure, the Land Tribunal has to fix the land, inclusive of the land appurtenant to the building which is necessary for the convenient enjoyment of the residential building inclusive of the easement right. On the other hand, if Crp 1234/00 10 it is not kudiyirippu but kudikidappu the Land Tribunal has to fix the area which could be purchased as kudikidappu. As these aspects were not considered by the Land Tribunal or the Appellate Authority the orders passed by the Land Tribunal in S.M.P.16/1994 and the Appellate Authority in A.A.181/1998 are set aside. S.M.P.16/1994 is remanded to Land Tribunal, Kollam for fresh consideration. Land Tribunal must decide whether first respondent is entitled to kudiyirippu right and if so, decide the extent for which kudiyirippu extents inclusive appurtenant land and easement right as defined under Sub Section 26 of Section 2. On the other hand, if the Land Tribunal finds it is kudikidappu, then it has to fix the Crp 1234/00 11 kudikidappu, which could be purchased by the first respondent. Land Tribunal, Kollam is directed to dispose S.M.P.16/1994 expeditiously. Parties are permitted to adduce further evidence, if so advised. Sent back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE. uj.