IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 SA.No. 195 of 1994(F) --------------------- AS.20/1982 of ADDL.SUB COURT, KOCHI OS.373/1979 of PRL.M.C., KOCHI .................... APPELLANTS/ADDL.APPELLANTS 1 TO 3 & 5,6,7/APPELLANT/DEFENDANT: ----------- 1. KARMALI, W/O.DECEASED APPELLANT RESIDING AT KUTTAPPACHERRY, ST.JOHN, PATTATHIL, FORT COCHIN. 2. VARGHESE, SP. -DO- 3. PHILOMINA, -DO- 4. JAMES, -DO- 5. JANET, -DO- 6. NELSON, -DO- BY ADV. SRI.A.N.RAJAN BABU RESPONDENTS/RESPONDENTS/PLAINTIFF: ------------- 1. JOSEPH, S/O.JOHN, PANACHIKKAL, ST.JOHM PATTATHIL, FORT COCHIN *2. BENJAMIN, -DO- -DO- *3. JOB, -DO- -DO- *4. ANNIE TREASA, W/O.LATE JOHN, PANACHIKKAL, (DIED) 5. JANATE, D/O.JOHN -DO- -DO- 6. THRESA, W/O.BENJAMIN RESIDING AT PANACHIKKAL ST.JOHN PATTATHIL, FORT COCHIN 7. SOPHIA, W/O.LATE JOB RESIDING AT PANACHIKKAL HOUSE, ST.JOHN, PATTATHI FORT COCHIN 8. NELSON, S/O.LATE JOB RESIDING AT -DO- -DO- 9. GLADIS, D/O.LATE JOB, -DO- -DO- 10. JOSEPH, S/O.LATE DEVASSY RESIDING AT KUTTAPPASSERRY ST.JOHN PATTATHIL, FORT COCHIN RESPONDENTS 2,3 & 4 REMOVED FROM THE ARRAY OF PARTIES AT THE PETITIONER’S RISK AS PER ORDER DT.07/06/94 ON CMP 869/94 R1 BY ADV. SRI.MATHEW ABRAHAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.331/94 IN SA 195/94 DISMISSED 6/3/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO.195 OF 1994 ------------------------------------------ Dated 6th March 2008 J U D G M E N T Legal heirs of defendant in O.S.373/1979 on the file of Munsiff court, Kochi are the appellants. Respondents are the plaintiffs. Respondents instituted the suit for injunction. Plaint A schedule property is admittedly the property which belongs to respondents. Deceased defendant was occupying a hut in the plaint schedule property. Plaint B schedule properties are structures erected in plaint A schedule property by the defendant which are 16 feet away from the hut. Respondents contended that though defendant is entitled to purchase 3 cents as a kudikidappu as provided under Kerala Land Reforms Act, he did not purchase kudikidappu and in March 1979 he trespassed into plaint A schedule property and put up a shed described in B schedule, 16 feet towards south east of the kudikidappu hut and when he was asked to remove the same, on 6/6/1979 he put up a new latrine which is also shown in plaint B schedule property. He has no SA 195/94 2 right to put up the structure and respondents are entitled to decree for mandatory injunction to demolish B schedule structures and also to pay damages at the rate of Rs.2.50/- per month as mesne profits. Defendant resisted the suit contending that he is in possession of 11 cents of the property surrounding the kudikidappu and he had put up a fence on all the four sides and constructed a latrine and shed within that property and he never agreed to demolish the structures and latrine was constructed as directed by the Corporation and respondents are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 to 3 and Ext.C1 report of the Commissioner granted a decree directing defendant to demolish B schedule structures within one month and directed him to pay damages for use and occupation at the rate of Rs.2.50/- per month till demolition finding that defendant has no right to put up structures and being a kudikidappukaran he can purchase only 3 cents of the property it being within the Corporation area. 3. Appellants challenged judgment before Sub court, Kochi in A.S.20/1982. Learned Sub Judge on re- SA 195/94 3 appreciation of evidence confirmed the findings of learned Munsiff and dismissed appeal. It is challenged in second appeal. Appeal was admitted formulating following substantial questions of law. 1) Whether the burden of proving the claim under Section 79A of Kerala Land Reforms Act is so heavily cast upon the claimant/kudikidappukaran. 2) As the plaintiff failed to rebut the benefit claimed under Section 79A of the Kerala Land Reforms Act, whether courts below were justified in denying the benefit to the appellant. 3) When the trial court found that version of the plaintiff regarding the time of the construction of the structures is not acceptable, was it correct to grant a decree in his favour depriving the kudikidappukaran the statutory benefit available under Section 79 A. 4. Learned counsel appearing for appellant was heard. 5. Argument of learned counsel was that under Section 79 A of Kerala Land Reforms Act notwithstanding anything contained in any other law, or SA 195/94 4 contract or decree and judgment, kudikidappukaran is entitled to all the rights which accrued to him by custom, usage or agreement which he was enjoying immediately before the commencement of Kerala Land Reforms Act and as the defendant was enjoying the benefit courts below should not have granted a decree for mandatory injunction. It was argued that as the defendant did not purchase kudikidappu right he is entitled to enjoy the benefits available to him including the one under Section 79 A and that right could be denied only if it is established that appellant was not enjoying the benefit earlier. It was argued that it is for respondents/plaintiffs to establish that defendant was not enjoying the benefit of the structures shown in the plaint B schedule prior to coming into force of Kerala Land Reforms Act and when respondents did not adduce satisfactory evidence courts below should have upheld the claim of the appellants and should not have granted a decree. 6. It is admitted case that plaint schedule property is within the Corporation of Kochi. As provided under Sub Section 3 of Section 80 A of Kerala Land Reforms Act (hereinafter referred to as the Act) SA 195/94 5 extent of land which kudikidappukaran is entitled to purchase shall be 3 cents in a city or major municipality, 5 cents in any other municipality and 10 cents in panchayat area. What was claimed by the appellants was that inclusive of kudikidappu he has been in possession of 11 cents of the property and he is entitled to protect that possession because of Section 79 A of the Act. I cannot agree with the argument that Section 79 A would enable the appellant to protect his right over 11 cents, when as a kudikidappukaran he is entitled to only 3 cents as provided under sub section 3 of Section 80 A. 7. Section 79 A of the Act provides that notwithstanding anything contained in any law or in any contract or in any judgment, decree or order of court, kudikidappukaran shall be entitled to all rights accrued to him by custom, usage or agreement and which he was enjoying immediately before the commencement of the Act. Scope of Section 79 A, cannot be widened to enable a kudikidappukaran to claim more extent than what is provided under Sub Section 3 of Section 80A. Fact that appellants did not avail of the benefit provided under the Act and did not apply for purchase SA 195/94 6 of kudikidappu will not enable him to claim a larger right than what he is entitled to under the Act. True, he is entitled to enjoy the benefit provided under Kerala Land Reforms Act, so long as he is a kudikidappukaran. But he cannot claim any right over the property till he purchases the kudikidappu other than the right to continue his residence in the kudikidappu enjoying the benefit provided under Section 79 A. Though learned counsel argued that being a beneficial legislation the burden is on the plaintiffs to prove that before the commencement of the Act, I cannot agree with that proposition of law. When a benefit of a provision is claimed by a party, it is for him to satisfy that he comes within the ambit of the provision to claim the benefit. The burden cannot be shifted to the opposite party and that to a negative fact as canvassed by the appellant. If the case of the appellant was that B schedule structures were being enjoyed by the appellants and it is for him to prove that it accrued to him either by custom, usage or agreement and that he was enjoying it immediately before the commencement of the Act. Trial court and first appellate court on appreciating the evidence SA 195/94 7 found that defendant did not establish that he was enjoying plaint B schedule structures before the commencement of the Act and that too as a right accrued to him either by custom, usage or agreement. That factual finding arrived at by the courts below cannot be interfered on re-appreciating the evidence, as long as appreciation of evidence was not perverse. On going through the judgment and evidence on records, I cannot agree with the submission that appreciation of evidence was not proper or was perverse. Evidence was properly appreciated. It was rightly found that defendants did not establish that he is entitled to the benefit provided under Section 79 A of Kerala Land Reforms Act. As long as the appellants did not purchase the kudikidappu right and B schedule structures are outside the 3 cents surrounding the hut and failed to establish the benefit of Section 79 A of Kerala Land Reforms Act, courts below rightly granted a decree in favour of respondents. There is no merit in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 195/94 8 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.195 OF 1994 6th March 2008 ============================