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CASE NO.:

Appeal (civil) 8259 of 2001

PETITIONER:

KUNJAN VASU

Vs.

RESPONDENT:

MADHAVAN ACHARI AND ORS.

DATE OF JUDGMENT: 12/12/2001

BENCH:

K.T. Thomas & S.N. Phukan

JUDGMENT:

THOMAS, J.

Leave granted.

Appellant is a Kudikidappukaran in the land of the

first respondent. He applied for purchasing ten cents of

land adjoining to his Kudikidappu. The word

Kudikidappukaran is defined in Section 2(25) of the

Kerala Land Reforms Act, 1963 (for short the Act). Shorn

of details of the definition which are unnecessary for the

purpose of this case, it means a person who has been

permitted by a person in lawful possession of any land to

occupy, with or without any obligation to pay rent, a hut

belonging to such person and situate in the said land. (The

person who is so permitted should have had neither a

homestead nor any land exceeding ten cents in any Panchayat

area on which he could erect a homestead). The word

Kudikidappu means the land and the hut so permitted to be

occupied together with the easements attached thereto.

The controversy which has bogged down in this appeal

is whether the appellant is entitled to purchase ten cents

of land as he claimed. The Land Tribunal as well as the

Appellate Authority found that he is entitled to purchase

ten cents of land. But a Division Bench of the High Court

held that appellant is entitled to purchase only two cents

of land out of 60 cents belonging to the first respondent.

The impugned judgment of the Division Bench has thus upheld

the contention of the respondents on that score.

Section 80A of the Act confers right on a

Kudikidappukaran to purchase the Kudikidappu occupied by

him and the land adjoining thereto. Sub-section (3)

thereof imposes a limit regarding the extent of land which

he can purchase. For the purpose of this case the said sub-

section is important and hence it is extracted below:

(3) The extent of land which the

kudikidappukaran is entitled to purchase

under this section shall be three cents in a

city or major municipality or five cents in

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any other municipality or ten cents in a

panchayat area or township:

Provided that where the land available for

purchase in the land in which the kudikidappu

is situate, or the land in which the

kudikidappu is situate, is less than the

extent specified in this sub-section, the

kudikidappukaran shall be entitled to

purchase only the land available for purchase

or, as the case may be, the land in which the

kudikidappu is situate.

As the Kudikidappu is situated in a Panchayat area

appellant claimed that he has a right to purchase ten cents

of land comprising of his Kudikidappu. Appellant contended

that he occupied the hut in 1959 whereas the respondents

contended that the occupation was made only after 4.3.1963.

The said contention was made by the respondent because

Ext.R1-mortgage deed dated 4.3.1963 was executed by him in

favour of the brother-in-law of the appellant. It is

submitted that the said mortgage is only for two cents of

land and that the Kudikidappu falls within the aforesaid

area of two cents.

The Land Tribunal and the Appellate Authority found

that appellant came into occupation of the Kudikidappu much

prior to Ext.R1 dated 4.3.1963. Appellant contended that

Ext.R1-mortgage deed was created by the first respondent in

collusion with appellants brother-in-law for the purpose

of defeating the rights of the appellant. But the Division

Bench of the High Court, in interference with the

concurrent fact finding of the Land Tribunal and the

Appellate Authority, came to the conclusion that appellant

started occupying the Kudikidappu only subsequent to Ext.R1

dated 4.3.1963.

Even assuming that appellant started occupying the

Kudikidappu only after 4.3.1963, the question is whether

appellant is entitled to purchase ten cents of land which

includes the Kudikidappu. There is no dispute that first

respondent does not have an area of ten cents of land

adjoining the Kudikidappu. The Division Bench of the High

Court while repelling the claim of the appellant for

purchasing ten cents of land, made the following

observation:

It is clear that the extent the

kudikidappukaran would be entitled to

purchase would only be the extent that was

the subject-matter of the mortgage. A

mortgagee in possession is a person who is

competent to grant permission within the

meaning of Section 2(25) of the Kerala Land

Reforms Act. Since on the materials

available in this case it is clear that the

permission was granted only by the mortgagee

who had taken a mortgage of only two cents

out of the property belonging to the land

owner, it is clear that the right to

purchase the kudikidappu conferred on the

kudikidappukaran by the Kerala Land Reforms

Act would only be in respect of the land

held by the mortgagee. That would only be

two cents in this case.

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In our view the Division Bench has committed an error

of law in thinking that a Kudikidappukaran is entitled to

purchase only so much of land which was in the possession

of the person who granted the permission to occupy the

Kudikidappu. Section 80A(1) says that notwithstanding

anything to the contrary contained in any law for the time

being in force, a Kudikidappukaran shall, subject to the

provisions of this section, have the right to purchase the

Kudikidappu occupied by him and lands adjoining thereto.

The extent of the land so purchasable by the

Kudikidappukaran has been fixed as ten cents if the land is

in a Panchayat. It is so provided in sub-section (3) of

Section 80A of the Act, and the only condition on which the

said extent can be reduced is envisaged in the proviso to

the said sub-section. We have extracted the sub-section

supra. The proviso shows that the extent would get reduced

only if the land available for purchase is less than the

extent specified in the sub-section. In such a situation

the Kudikidappukaran will be entitled to purchase only the

land available for purchase. Land available for purchase

means the adjoining land available with the landowner for

being purchased by the Kudikidappukaran. Here, there is no

contention for the respondent that there is no land

available beyond two cents. Merely because Ext.R1mortgage

deed is for two cents does not mean that the first

respondent has no land beyond that extent.

It is admitted by the first respondent landowner that

the Kudikidappu is situated in his land the extent of which

is about 60 cents. Even if the person who granted

permission to occupy the Kudikidappukaran had possession of

two cents only at a time when he granted such permission it

does not mean that the Kudikidappukarans rights would be

reduced to such two cents, so long as the landowner had got

more than ten cents of land available adjoining the

Kudikidappu. Once the person in possession of the land has

permitted the Kudikidappukaran to occupy the Kudikidappu he

acquires all the rights conferred by the Act as

Kudikidappukaran. First respondent continued to have

possession over 60 cents of land and he cannot now contend

that there is no land available beyond two cents for the

Kudikidappukaran to purchase.

In the aforesaid view of the matter it is unnecessary

for us to consider whether appellant was inducted into the

Kudikidappu prior to Ext.R1 dated 4.3.1963. We therefore

allow this appeal and set aside the impugned judgment of

the High Court.

J

[ K.T. Thomas ]

J

[ S.N. Phukan]

December 4, 2001.

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