IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 CRP.No. 2047 of 1994(H) ----------------------------------- AA.49/1990 of APPELLATE AUTHORITY (LAND REFORMS), THRISSUR OA.87/1978 of LAND TRIBUNAL, CHAVAKKAD .................... PETITIONERS/APPELLANTS IN A.A./RESPONDENTS 1 & 2 IN O.A.: ------------------------------------------------------------------------------------------------ *1. SMT.ELACHIAR, RETIRED TEACHER, W/O.PULIKKOTTIL VAREED, PARAYIL ANGADY, MECHERY DESOM, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. *(DIED) 2. SMT.MARIYAMMA, W/O.PANAKKAL MANI, NEPPALTH LANE, MECHERY DESOM, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR DIST. *ADDL. PETITIONERS 3 TO 5 IMPLEADED ADDL. P3: MARY VARGHESE. P., W/O.THARU PANACKAL, THADAMBNATTU THAZHAM, POST KARAPARAMBU, CALICUT-10. ADDL. P4: C.C. ESTHER, W/O.LATE DAVID P.V., PULIKOTTIL HOUSE, OPP. TO STATE WARE HOUSE, PARAYIL, KUNNAMKULAM. ADDL. P5: MILLY DAVID (MINOR), D/O.LATE DAVID P.V., -DO-, REPRESENTED BY GUARDIAN AND MOTHER C.C. ESTHER. *ADDL. PETITIONERS 3 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST PETITIONER VIDE ORDER DATED 24/08/2001 ON C.M.P.4615/2001. BY SRI.C.S.ANANTHAKRISHNA IYER, SENIOR ADVOCATE, ADV. SRI.K.K.MOHAMED RAVUF, SRI.SAJAN VARGHEESE K. CRP.No. 2047 of 1994(H) RESPONDENT 1 TO 4 IN A.A./RESPONDENT 3 TO 5 IN O.A./ RESPONDENT NO.5 NON-PARTY: -------------------------------------------------------------------------------------- 1. WILSON, S/O.CHERUVATHUR MATHU, PARAYIL ANGADY, MECHERY DESOM, KUNNAMKULAM VILLAGE, THRISSUR DISTRICT. 2. THANKAMMA, W/O.CHERUVATHUR MATHU, RESIDING IN DO. DO. 3. GRACY, W/O.PULIKKOTTIL CHERIYAN, PADINJARE ANGADY, CHALISSERY AMSOM AND DESOM, OTTAPPALAM TALUK. 4. JOB MATHEW C., MODI SEBH CHOWL, ROOM NO.6, K.H.A.R. EAST, BOMBAY-400 051. 5. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, THIRUVANANTHAPURAM. R1 TO R4 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R5 GOVT. PLEADER THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. “C.R.” THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- C.R.P.NO.2047 OF 1994 () ----------------------------------- Dated this the 14th day of July, 2010 O R D E R THOTTATHIL B. RADHAKRISHNAN, J. This matter comes up before us by a reference made by the learned Single Judge by stating that the case involves important questions of law, and, therefore, the matter requires to be considered by a larger bench. We, therefore, bestowed our anxious consideration to the entire facts and pleadings, material evidence, order of the Land Tribunal and the judgment of the Appellate Authority, notwithstanding that no specific question of law has been pointedly suggested in the reference order, for consideration. 2. This revision is under Section 103 of the Kerala Land Reforms Act, 1963, hereinafter referred to as the 'Act'. The 1st respondent herein, whom we would hereinafter call the C.R.P.2047/94 2 'applicant', filed an application before the Land Tribunal, under Section 80B of the Act, for purchase of kudikidappu right. He put his claim based on Explanation IIA of Section 2(25) of the Act. His case was that he was in occupation of the land and the dwelling house therein, from 16.8.1968 to 1.1.1970 and even thereafter, that being the statutory requirement to claim benefit of Explanation IIA of Section 2(25) of the Act, which is a code by itself and operates notwithstanding any judgment, decree or order of any court. 3. For the purpose of the case in hand, we do not deem it necessary to examine as to whether the different conditions as to the nature of the building, costs of its construction etc. have been satisfied in terms of the provisions in Explanation IIA and the provisos thereunder. The short issue to be considered is as to whether the applicant could be treated as a person “in occupation” of the land and dwelling house during the relevant time, that is, from 16.8.1968 to 1.1.1970. C.R.P.2047/94 3 4. The undisputed facts are that the land originally belonged to Kunhi, who filed O.S.No.620/1104 ME for eviction of four persons including Mathai Kathanar and his wife Kunhitti. Mathai Kathanar defended that case contending that he had put up a building and is residing there. That suit was decreed ordering eviction, also by paying Kathanar value of improvements. The sequence of events thereafter in relation to that suit is irrelevant for the purpose of the issue in hand. All that deserve to be noticed is that Mathai Kathanar and his wife Kunhitti had three children - Mathew, Mariamma and Elachiar. Kunhitti, thereafter, sued her son Mathew by filing O.S.No.315 of 1964 seeking his eviction from the building. Mathew set up a case that he has a lease agreement with his mother Kunhitti. That found its waterloo and O.S.No.315 of 1964 was decreed holding that Mathew was only a trespasser and that he is liable to be evicted. That decree is stated to be pending execution. 5. The applicant Wilson is one among the five children of the aforesaid Mathew and his wife Thankamma. Wilson, who, C.R.P.2047/94 4 going by the materials on record, was born in 1958, filed the original application before the Land Tribunal claiming that he was in occupation of the building in question which is the very same building involved in O.S.No.315 of 1964. We may, at once, notice that in 1968, he would have been hardly ten years old. The relevant period for the purpose of Explanation IIA of Section 2(25) of the Act is 16.8.1968 to 1.1.1970. The question is whether he who resided in the building along with his siblings and their father Mathew, who faced the decree for eviction, could claim occupation of the building to set up a right referable to Explanation IIA of Section 2(25) of the Act. 6. In this context, the learned senior counsel for the applicant (1st respondent herein) argued that the operation of Explanation IIA is notwithstanding any judgment or decree, and therefore, the findings in O.S.No.315 of 1964 would have no bearing on the claim set up by the applicant. What is provided by the non obstante clause to Explanation IIA to Section 2(25) of the Act is that the kudikidappu right referable to that provision C.R.P.2047/94 5 on the basis of any occupation and the jurisprudential content of that right would not get diluted in any manner by any judgment, decree or order issued earlier. That does not mean that the courts are disentitled or precluded from looking into earlier judgments which decided other issues of facts if could be treated as conclusive on material aspects and particulars which would have an impact on the ultimate question for decision under Explanation IIA of Section 2(25) of the Act. The decree in O.S.No.315 of 1964 and the judgment thereof categorically negatived the plea of Mathew that he was a lessee under his mother Kunhitti. It was found that he is a trespasser liable to be evicted through the process of law. Possession is a necessary element to treat a person as a trespasser. Obviously, the clear finding in O.S.No.315 of 1964 was that Mathew was in possession. If that be so, the said finding against Mathew cannot be ignored while his son Wilson claims that he was in occupation of the very same building when he was 10 to 12 years old and on the basis of that occupation, he is entitled to an independent right referable to Explanation IIA to Section 2(25) of the Act. We C.R.P.2047/94 6 find pearls of wisdom in this regard in the judgment of this Court in Mariam and Others v. Ouseph Xavier (1971 KLT 709), wherein, Justice V.R.Krishna Iyer succinctly states that “the law would reduce itself to an absurdity if every man, woman and child in a hut begins to set up an independent kudikidappu right merely because the master of the household has taken permission to occupy and the others are inhabiting the house along with him.” We are aware that permission for the purpose of occupation is not an element which is relevant for deciding a claim under Explanation IIA. Therefore, we treat it that the claim of the applicant has to be decided notwithstanding whether his father had taken any permission from any person to occupy building or land. That position notwithstanding, it has necessarily to be laid down that the principle enunciated as above, by Justice Krishna Iyer applies on all fours even to cases where the kudikidappu right that is sought to be established is independent of any permissive occupation. So much so, the judgment in O.S.No.315 of 1964 nails down the claim of the applicant on the face of the findings therein that Mathew is a C.R.P.2047/94 7 trespasser. Kunhitti, whose other heirs, namely, the sisters of Mathew and their estate are the respondents in the proceedings initiated by the applicant Wilson. 7. For the aforesaid reasons, we find that the occupation claimed by the applicant Wilson has no relevance for the purpose of Explanation IIA of Section 2(25) of the Act. We are also of the view that the applicant Wilson, at the age of 10 or 12, apart from the fact that he was a minor, could not have, by reason of his tender age, set up an occupation which could be taken cognizance of by law independent of the lease claimed by his father and the possession of his father as found by the civil court in O.S.No.315 of 1964. 8. The Appellate Authority, in our view, did not exercise its authority under Section 102 of the Act in deciding the appeal. The final order passed in the appeal by the Appellate Authority and the decision of the Land Tribunal, which has merged therein, are erroneous in law and are liable to be set aside in exercise of C.R.P.2047/94 8 the powers under Section 103 of the Act. Hence, this revision succeeds. In the result, this revision is allowed setting aside the impugned judgment of the Appellate Authority and the order of the Land Tribunal. Resultantly, O.A.No.87 of 1978 on the file of the Land Tribunal, Chavakkad, is dismissed. The revision petitioner is entitled to costs through out. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- C.R.P.NO.2047 OF 1994 () ----------------------------------- O R D E R 14th day of July, 2010 C.R.P.2047/94 10