Choyikutty @ Rajan v. Shaji and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 RCRev..No. 103 of 2007() -----------------------RCA.101/2006 of DISTRICT C.OURT& SESSIONS COURT,KOZHIKODE RCP.169/1992 of ADDL.MUNSIFF COURT.,KOZHIKODE-I .................... ## REVISION PETITIONER/APPELLANT/2ND RESPONDENT ---------------------------------------------------------------- CHOYIKUTTY @ RAJAN, AGED 51, S/O. AYINOOR APPU,KOTTOOLI AMSOM AND DESOM,KOZHIKODE TALUK. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): RESPONDENTS/PETITIONERS/RESPONDENTS1, ---------------------------------------------------- 1. SHAJI,S/O.SIDHARTHAN,ODUKKATHIL HOUSE, PANNIYANKARA AMSOM AND DESOM,KOZHIKODE TALUK,. 2. MOOLAMPALLY SOUMINI,AGED 63,W/O. MOOLAMPALLY LOHITAKSHAN,THATTARAKKAL, KALATHINKUNNU AMSOM AND DESOM,KOZHIKODE. 3. M.SAJEENDRAN,AGED 35,W/O.MOOLAMPALLY LOHITAKSHAN, -DO- 4. M.SAJITHA,AGED 33,D/O.MOOLAMPALLY LOHITAKSHAN,-DO- 5. M.RAJKUMAR,AGED 32,S/O.MOOLAMPALLY LOHITAKSHAN,-DO- 6. M.SAJITHKUMAR,AGED 31,-DO- ADV. SRI.K.PRAVEEN KUMAR FOR R1 BY SRI. CIBI THOMAS THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & K. HARILAL,JJ.** .................................................................... R.C.R.NO.103 OF 2007 ................................................................... Dated this the 19[th] day of December, 2011. ## **O R D E R** ## **Pius C. Kuriakose, J.** The alleged sub tenant is the revision petitioner. He challenges in this revision the judgment of the rent control appellate authority confirming the order of eviction which is passed against him on the ground of subletting and against the legal heirs of the deceased tenant under Section 11(2)(b) and 11(4)(1). In this revision various grounds have been raised assailing the judgment of the appellate authority. 2. Even though Sri. Thomas Chazhukkaran, learned counsel for the revision petitioner addressed arguments before us based on all the grounds, he would give thrust in his submissions to the argument that the eviction order is not liable to be passed against the revision petitioner for the reason that the revision petitioner is a kudikidappukaran. Sri. Chazhukkaran submitted that it was the case of the revision petitioner that he is a deemed kudikidappukaran in the building in question, in terms of Explanation 2(a) to Section 2(25) KLR Act. He also submitted that even before the rent control petition for eviction was instituted, the R.C.R.NO.103 OF 2007 : 2 : revision petitioner had filed an original application before the local land tribunal under Section 80(b). On noticing that issue of kudikidappu arises, the rent control court referred the issue of kudikidappu to the land tribunal under Section 125(3). The reference case was consolidated by the land tribunal along with the O.A and a common order was passed in the O.A as well as in the reference case. Sri. Chazhukkaran submitted that the Revenue Inspector authorized by the land tribunal has reported in his report that the building in question was a hut and that the petitioner has no other house or land on which he can erect a homestead. However, without giving notice to the revision petitioner, the first respondent produced a revenue extract which indicates that the petitioner was in possession of 15 cents of land. Taking the view that a person who owns and possesses 15 cents of land will not be eligible for kudikidappu right, the land tribunal held that the petitioner is not a kudikidappukaran. The land tribunal’s decision was incorporated by the rent control court in its order in terms of Section 125 (5). Thereafter the rent control court enquired into the merits of R.C.R.NO.103 OF 2007 : 3 : the eviction grounds and held that grounds under Section 11(2)(b) as well as Section 11 (4)(1) stood established. Accordingly, the order of eviction was passed on both the above grounds. The revision petitioner carried the matter in appeal to the rent control appellate authority. The rent control appellate authority which was expected to consider the correctness of the decision taken by the land tribunal, did not look into that question at all. According to the learned appellate authority, the revision petitioner’s status was correctly found to be that of a subtenant. Following the judgment of this Court in **A.V. Kammath v. Chandran** (1989 (1) KLT 473) and some other decisions, the appellate authority took the view that being a subtenant, the revision petitioner is not entitled to challenge the order of eviction at all. 3. Sri. Cibi Thomas, the learned counsel for the respondents/landlords would oppose all the submissions of Sri,.Chazhukkaran. According to Sri. Cibi, there is no illegality, irregularity or impropriety in the decision taken by the appellate authority and the rent control court. He R.C.R.NO.103 OF 2007 : 4 : submitted that the village officer has also reported that the revision petitioner is in possession of 15 cents of land. He submitted further that the Advocate Commissioner appointed by the land tribunal has reported that the cost of construction of the building at the time of construction exceeds Rs.900/-. Therefore, in any event, the revision petitioner will not be entitled for kudikidappu right. 4. After hearing both sides, we called for the entire records and we have perused the records. The question that calls for decision by us is whether the judgment of the appellate authority suffers from any illegality, irregularity or impropriety as contemplated by Section 20 of Act 2 of 1965. Section 125 (6) of the Kerala Land Reforms Act will show that for the purposes of appeal, the decision taken by the land tribunal to which question of tenancy, kudikidappu etc are referred will be deemed to be part of the decision of the referring court itself. On going through the judgment of the appellate authority, we find that the learned appellate authority was totally unconcerned about the correctness of the decision of the land tribunal. According to the appellate R.C.R.NO.103 OF 2007 : 5 : authority, in the teeth of the finding entered by the rent control court that the revision petitioner is not a tenant but is only a subtenant, the revision petitioner is not entitled to challenge the correctness of the eviction order passed by the rent control court. We are afraid that the lower appellate authority had erred. The revision petitioner raised a plea that he is a kudikidappukaran. The above plea was referred to the land tribunal in terms of Section 125 (3) of the Act. The reference case was registered on the basis of the reference order consolidated by the land tribunal. The revision petitioner has already filed an original application before the land tribunal. The land tribunal passed a common order in the reference case as well as in the original application. The correctness of that common order was liable to be examined. If it could be found that the order was wrong and the revision petitioner is entitled to kudikidappu right, then the revision petitioner can avoid the eviction order not in his capacity as a subtenant but in his capacity as a kudikidappukaran entitled to purchase in terms of Section 80(b). We in this context notice that the contention R.C.R.NO.103 OF 2007 : 6 : of the revision petitioner that he is kudikidappukaran satisfying Explanation 2 (a) of Section 2 (25) of Kerala Land Reforms Act may not be sustainable in view of conceded position that the revision petitioner’s mother under whom the revision petitioner claims started occupation of the building only in 1972. But the issue of kudikidappu having been referred and the land tribunal having taken a decision against the revision petitioner, the appellate authority was bound to examine the correctness of that decision. We find from the order of the land tribunal that the said tribunal found that the revision petitioner is not a kudikidappuran mainly on the basis of the document and report submitted by the village officer which were to the effect that the revision petitioner is the assignee in possession of 15 cents of land. But a perusal of the records reveal that the above land was single crop wet land. The question whether the 15 cents of land assigned to the revision petitioner was fit for erecting a homestead was never considered by the land tribunal. If it is seen that the above land is fit for erecting a homestead, then the revision petitioner may still be R.C.R.NO.103 OF 2007 : 7 : disentitled for kudikidappu right. So also we notice from the records that the report of the advocate commissioner is to the effect that cost of construction of the building at the time of construction is above Rs.900/-. If this report is correct, that itself may be a reason to deny the right of kudikidappu to the revision petitioner. These are all issues to which neither the land tribunal nor the appellate authority applied its mind. We feel that the issue as to whether the revision petitioner is entitled for kudikidappu right should receive proper attention at the hands of the rent control appellate authority. Unlike the rent control court, it is bound to accept the order of the land tribunal, the rent control appellate authority is empowered under the statute to take its own independent decision as to whether the revision petitioner is a kudikidappukaran in terms of Section 125(6). Under the scheme of the Rent Control Act, the appellate authority’s power and the rent control court’s, in the matter of conduct of enquiry is co equal. We feel that in this case to avoid further delay, the issue need be remanded back to the appellate authority only and not to R.C.R.NO.103 OF 2007 : 8 : the land tribunal as requested by Sri.Chazhukkaran The result of the above discussion is therefore as follows: The judgment of the appellate authority to the extent it confirms the finding of the rent control court that the revision petitioner is not a kudikidappukaran is set aside. The findings concurrently entered by the rent control court and the appellate authority that eviction grounds 11(4)(1) and 11(2)(b) are confirmed. Only the issue of kudikidappu is being remitted. The RCA is remanded to the rent control appellate authority. Transmit the entire lower court records including those of land tribunal which is before us to the rent control appellate authority. That authority can, if parties are desirous, permit them to adduce evidence in the context of kudikidappu right. The appellate authority will take a fresh decision on the issue whether the revision petitioner is a kudikidappukaran entitled to kudikidappu right on the evidence already adduced and further evidence the parties may adduce. Parties will enter appearance before the appellate authority on 03.01.2012. The learned appellate authority is directed to complete the enquiry and ## R.C.R.NO.103 OF 2007 : 9 : pass orders within four months thereafter. If the appellate authority finds that the petitioner is a kudikidappukaran, consequential orders can be passed with reference to the eviction order we have confirmed. **PIUS C. KURIAKOSE, JUDGE.** **K. HARILAL, JUDGE.** ## **cl**