IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 CRP.No. 722 of 2005() --------------------- AGAINST THE ORDER DATED 14/06/2005 IN EP 295 1998 IN OS.1176/1994 of III ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM .................... REVN. PETITIONERS: PLAINTIFFS: ----------------------------- 1. INDIRA BAI AMMA, ATTARIKATHU VEEDU, CHERUPULODE MANIKANDESWARAM, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. T.S. RENUKABAI AMMA, -DO-. 3. S.MADHUSOODHAN NAIR, -DO-. 4. I.S. SINDHU, -DO-. 5. I.S. SANDHYA KUMARI, -DO-. 6. I.S. INDHU KUMARI, -DO-. BY ADV. SRI.D.SAJEEV RESPONDENT: DEFENDANT: ----------------------- PONNAMMA, T.C.2/921, PUTHUPALLY LANE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 2013 OF 2005 IN C.R.P. NO. 722 OF 2005. DISMISSED 2.6.2008 Sd/-(HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 722 OF 2005 -------------------------------------------- Dated this the 2nd day of June, 2008 O R D E R The plaintiffs/decree holders in O.S. No.1176 of 1994 on the file of the III Additional Munsiff's Court, Thiruvananthapuram are the revision petitioners. The impugned order was passed in E.P. No.295 of 1998. The execution court closed the above petition accepting the order passed by the Land Tribunal that the judgment debtor is entitled to get kudikidappu right under the Kerala Land Reforms Act, 1963 (hereinafter referred to as "the Act). This order is under challenge in this revision. 2. The revision petitioners/decree holders obtained a decree for redemption of the property having an extent of 3 cents in the year 1996. In the execution proceedings, the question of kudikidappu was referred to the Land Tribunal. By order dated 15.9.2004, the Land Tribunal held that the applicant was entitled to kudikidappu right. The said finding was forwarded to the civil court for passing orders. C.R.P.NO.722/2005 2 3. Learned counsel appearing for the revision petitioners/decree holders submitted before me that the Land Tribunal did not go into any of the contentions raised by the decree holders. According to him, the Land Tribunal placed reliance on Exts.C1 and C2 reports of the Revenue Inspector and held that the applicant is entitled to kudikidappu right without going into the question as to whether she is eligible to purchase kudikidappu or not. Counsel further submitted that the property was given to the judgment debtor by way of mortgage and the suit was decreed for redemption of mortgage. Therefore, the commencement of occupation or the nature of occupation are not very relevant for the consideration as to whether the applicant is entitled to kudikidappu right. Counsel also submitted that as per Ext.A3 ration card, the family of the applicant has an annual income of Rs.8,400/- and hence the applicant is not eligible to claim kudikidappu right. According to him, the definition of family includes the head of the family, his spouse and minor children and that going by Ext.A3 ration card, it is seen that the applicant alone constitute the family and hence it is for the applicant to prove that her annual income is less than Rs.2,000/-. 4. Learned counsel appearing for the respondent/applicant submitted that the income shown in Ext.A3 ration card is not the income of C.R.P.NO.722/2005 3 the applicant, but the income of her son who was a coolie at that time. 5. On going through the order passed by the Land Tribunal, I find that the Land Tribunal has not considered the question as to whether the applicant is eligible for purchasing kudikidappu right or not. Whether Explanation IV(b) of Section 2(25) of the Act is attracted or not depends on the facts and circumstances of the case on hand. It is for the applicant before the Land Tribunal to prove that she is occupying the homestead and that her annual income is less that Rs.2,000/-. The Land Tribunal did not go into this question, nor appreciated the oral evidence, if any, adduced by the parties. In the circumstances, the impugned order is set aside and I direct the execution court to refer the question again to the Land Tribunal for reconsideration. The execution court is directed to forward the records to the Land Tribunal immediately, at any rate within two weeks from the date of receipt of a copy of this order. The Land Tribunal shall pass orders afresh within a period of six months from the date of receipt of the records. The execution court shall pass orders based on the order passed by the Land Tribunal. I remind the execution court that this is a case in which the decree was passed in the year 1996 and hence the matter shall be expedited. C.R.P.NO.722/2005 4 The Civil Revision Petition is disposed of as above. The parties are at liberty to adduce additional evidence, if any. There will be no order as to costs. Transmit the records immediately. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P.NO.722/2005 5 HAURN-UL-RASHID, J. C.R.P. NO. 722/2005 O R D E R 2ND JUNE, 2008