Chandanavettil Shanta v. P.V. Shanta Kumari

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932** **RCRev..No. 170 of 2010()** **-----------------------AGAINST THE JUDGMENT IN RCA.94/2005 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE), THALASSERY DATED 28.8.2009 ARISING FROM THE ORDER IN RCP.295/1997 OF RENT CONTROL COURT,KANNUR DATED 25.01.2005** **....................** ## **REVISION PETITIONER/APPELLANT/RESPONDENT** **--------------------------------------------------------------------------** **CHANDANAVEETTIL SHANTHA, D/O.NARAYANI, AGED 63 YEARS, NO OCCUPATION RESIDING AT C.P. VII-120, THAZHA VALAPPIL, PO.CHIRAKKAL, KANNUR-11.** **BY ADV. SRI.N.NAGARESH SRI.K.BABU SRI.BINU PAUL SRI.T.V.VINU** ## **RESPONDENT/RESPONDENT/PETITIONER** **----------------------------- --------------------------------** **P.V.SHANTHA KUMARI, D/O.ROHINI, AGED 78 YEARS, NO OCCUPATION, RESIDING AT PRASANNALAYAM, PO CHIRAKKAL, CHIRAKKAL AMSOM, DESOM, KANNUR-670011.** **ADV. SRI.V.RAMKUMAR NAMBIAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **dmb** ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** ## **---------------------------------R.C.R. No.170 of 2010** **-----------------------------Dated this the 20[th] day of December 2010** ## **O R D E R** ## Pius C. Kuriakose, J. Under challenge in this revision filed by the respondent in a rent control proceeding (the alleged tenant) is the decision of the statutory authorities repelling the revision petitioner's case that she is having 'kudikidappu' right over the petition schedule building. 2. The Rent Control Court found that the petitioner is not a 'kudikidappukari' mainly on the basis of a report submitted by a commissioner on the basis of a local inspection that the petition schedule building is not an independent building but is a part of two room line building. The Advocate Commissioner reported that though as matters exist now there is only one room (petition schedule R.C.R. No.170 of 2010 -: 2 :- building), on excavation of the adjacent soil it was revealed that in the beginning there were two rooms and that one of them was removed. Ext.A1 rent kaychit which is not denied also strongly supported the Commissioner's report that to begin with there were two rooms and only one room is entrusted with the revision petitioner. 3. Even though Sri.K.Babu, the learned counsel for the revision petitioner would draw our attention to Ext.C1 Commissioner's report and submit that what has been reported by the Commissioner is that on removing the soil of the lands adjacent to the petition schedule building he saw basement (Kuzhiyatta) made out of layers of lacerated stones on all sides. According to Mr.Babu if the petition schedule building was originally part of two room building and one room was subsequently removed as alleged by the landlord kuzhiyatta on basement would be visible only on three sides and not on all four sides. Mr.Babu would further argue relying on the judgment of Full Bench of this R.C.R. No.170 of 2010 -: 3 :- Court in **Mary Yohannan** v. **Sreekumaran Nair** [1991(2) KLT 751 (F.B)] that, even it is assumed that at the time when the petitioner was originally inducted into the building it was a part of two room building, then also when the other room is removed and the petition schedule building became an independent structure, the petitioner acquired the status of 'kudikidappukari' and became entitled to purchase 'kudikidappu'. There is no cut off date for creation of 'kudikidappu' so submitted by the learned counsel. 4. The submissions of Mr.Babu were strongly opposed by Mr.V.Ramkumar Nambiar. He drew our attention to the statutory provisions as well as to the pleadings of the revision petitioner, and submitted that the definite case of the revision petitioner is that the building in question was all along an independent building which the petitioner's mother was permitted to occupy. His case has to fall to the ground in view of Ext.C1 Commission Report R.C.R. No.170 of 2010 -: 4 :- and Ext.A1 rent chit which is not disputed. 5. Mr.Babu also argued that the Rent Controller was not justified in permitting adduction of evidence against the finding of the Land Tribunal. Question whether the petitioner is a 'kudikidappukari' or not is outside the jurisdictional competence of the Rent Control Court. 6. We have very anxiously considered the rival submissions with the reference to the statutory provisions as well as the relevant judicial precedents governing the issue. It is trite by the judgment of the Full Bench in **Muhammed** v. **Imbichibi** [1974 KLT 738 (F.B)] that a person in occupation of part of a building cannot be 'kudikidappukaran' as part of a building will not qualify as a hut for the purpose of Section 2(25). Ext.C1 Commissioner's Report is the main piece of evidence which is relied on by the statutory authorities to support their view that the petition schedule building is originally part of a larger building. The argument of Sri.K.Babu that Ext.C1 R.C.R. No.170 of 2010 -: 5 :- report being a report submitted before the Rent Control Court pursuant to a commission order issued by that court cannot have probative value as it is the Land Tribunal alone which has got power to decide the issue of 'kudikidappu' does not appeal to us, at all. The Land Tribunal came to have of seizin of the matter pursuant to an order of reference passed by the Rent Control Court under Section 125(3) of the KLR Act only. 7. Though under the scheme of Kerala Land Reforms Act, it is the Land Tribunal which has got the power to find one way or other regarding 'kudikidappu' and similar rights and such finding by the Land Tribunal will be binding on the referring, it cannot be lost sight of that the proceedings before the Rent Control Court is the main proceedings with reference to which the essential dispute between the parties whether or not an order of eviction is liable to be passed has to be decided. This Court has held in **Kunhammed Koya** v. **Nallalam Saw Mills** [2010 (4) KLT R.C.R. No.170 of 2010 -: 6 :- 79] (authored by one among us PCK(J)] that a referring court has got power to permit the parties to adduce evidence on the issue referred to the Land Tribunal, even after the Land Tribunal has entered its findings as the court of appeal on the finding of the Land Tribunal is the Rent Control Appellate Authority. It is very clear from our mind that Ext.C1 report obtained by the Rent Control Court was a valuable piece of evidence more so in this case where Ext.C1 was to in evidence before the Land Tribunal also. A careful reading of the penultimate paragraph of Ext.C1 would show that what the Commissioner has reported was only that basement made out of layers of lacerated stones was seen on all the sides where basement was visible. The Advocate Commissioner reported pursuant to a specific representation made by the landlord that there was a room on the northern side of the petition schedule building. As rightly argued by the learned counsel for the landlord execution of Ext.A1 is not specifically denied. What is R.C.R. No.170 of 2010 -: 7 :- contended is that even prior to Ext.A1 the petitioner's mother had been put in possession of the building. Ext.A1 clearly shows that at the time of Ext.A1 the building was only one room in a larger building with two rooms. Mr.K.Babu's argument based on the judgment of Full Bench in Mary Yohannan v. Sreekumaran Nair also will not come to his client's rescue. Ext.A1 rent deed of 1967 shows that, in 1967 the building in question was part of a two room building. The definite case of the petitioner is that her mother was permitted to occupy the petition schedule building namely the building covered by Ext.A1. The case is that from the very beginning it was an independent building, a case which cannot be accepted at all. On going through the pleadings we do not find any claim that the petitioner acquired the status of a 'kudikidappukari' at any point of time later on the time of original induction. In the absence of such pleadings, the case based on the Full Bench decision in Mary Yohannan v. Sreekumaran Nair cannot be R.C.R. No.170 of 2010 -: 8 :- countenanced. According to us there is no illegality, irregularity or impropriety on the finding concurrently entered by the Rent Control Appellate Authority and Rent Control Court accepting the finding of the Land Tribunal that the petitioner is not a 'kudikidappukari'. RCR will fail and stand dismissed. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt