M.A. Abdul Rahiman and others v. Hassanathul Juma Masjid and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944 CRP NO. 71 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OS 171/1986 OF PRINCIPAL** ## **MUNSIFF, KASARAGOD** ## **RC 3/2011 OF LAND TRIBUNAL, KASARGOD** ## **REVISION PETITIONER/S:** 1 M.A. ABDUL RAHIMAN S/O RAJA MAMMUNHI, HASANATHUL JARIAH JUMA MASJIDCOMPOUND, MASJID ROAD, KASARGODE. 2 ACHIBI D/O RAJA MAMMUNHI, CHENGALA, KASARGODE. 3 MARIYUMMAMANHA D/O RAJA MAMMUNHI, NELLIKUNNU, KASARGODE. 4 JAMEELA D/O RAJA MAMMUNHI, BANGARA KASBA, MANGALORE. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.P.P.RAMACHANDRAN ## **RESPONDENT/S:** 1 HASSANATHUL JARIAH JUMA MASJID REP. BY ITS PRESENT MUTHAVALLY-DR. M.A SCHEMNAD,S/O AHAMAD SCHEMNAD, FORT ROAD, KASARGODE-671121. 2 KHADEEJA D/O YOUSUF, BANGRAMUNNU, NELLIKUNNU,KASARGODE KASBA VILLAGE, KASARGODE-671121. 3 RAMLA D/O YOUSUF, BANGRAMUNNU, NELLIKUNNU,KASARGODE KASBA VILLAGE, KASARGODE-671121. 4 SAKEENA D/O YOUSUF, BANGRAMUNNU, NELLIKUNNU,KASARGODE KASBA VILLAGE, KASARGODE-671121. 5 RAHMATH D/O YOUSUF, BANGRAMUNNU, NELLIKUNNU,KASARGODE KASBA VILLAGE, KASARGODE-671121. 6 UMMAIBA D/O YOUSUF, BANGRAMUNNU, NELLIKUNNU,KASARGODE KASBA VILLAGE, KASARGODE-671121. CRP No.71 of 2018 -2- 7 HANEEFA D/O YOUSUF, BANGRAMUNNU, NELLIKUNNU,KASARGODE KASBA VILLAGE, KASARGODE-671121. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.09.2021, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING:** CRP No.71 of 2018 -3- ## **ORDER** Dated this the 05[th] day of April 2022 Revision Petitioners and respondents 2 to 7 are the respondents in E.P.No.253 of 2009 in O.S.No.171 of 1986 on the files of the Principal Munsiff's Court, Kasaragod. The essential facts leading up to the filing of the revision petition are as under; The first respondent, a Wakf, had filed the suit (O.S.No.171 of 1986) before the Munsiff's Court, Kasaragod, alleging that land belonging to the Wakf admeasuring 3 cents, comprised in Re-Sy. No.51 of 2019 had been taken on lease by Mammunhi S/o.Moosa, the predecessor-in-interest of the defendants, on ground rent of Rs.3.50 per month. After that, Mammunhi constructed a house on the property and executed a lease deed on 26.07.1966. After Mammunhi’s death, the defendants continued to occupy the home. Since the defendants CRP No.71 of 2018 -4- defaulted on payment of rent from 26.03.1983 onwards, a lawyer notice was issued, calling upon the defendants to vacate the property. In their reply, the defendants claimed to have perfected kudikidappu right over the subject building. Thereupon, the suit was filed seeking a decree to ascertain the value of the building existing in the property and surrender of possession of the property with future mesne profits. The defendants resisted the suit by contending that in recognition of Mammunhi's kudikidappu right, a purchase certificate had been issued to them from the Land Tribunal, Kasaragod. The Munsiff's Court dismissed the suit accepting the defendants' case. Thereupon, the first respondent filed A.S.No.79 of 1989 before the Sub court, Kasaragod. The appeal was allowed, finding that the purchase certificate was not binding on the first respondent, as the certificate was obtained without notice to the Wakf. Aggrieved, the CRP No.71 of 2018 -5- defendants filed RSA No.528 of 1990 before this Court. The Second Appeal was dismissed, confirming the judgment of the lower appellate court and leaving open the defendants' right to agitate their claim of kudikidappu in the execution proceedings and future, directing the executing court to fix the value of the building to be deposited by the decree-holder. Following the direction, the claim of tenancy was referred to the Land Tribunal under Section 125 (3) of the Land Reforms Act ('the Act' for short). The Land Tribunal found the evidence adduced to be insufficient and answered the reference by holding that the defendants in the suit have no kudikidappu right over the 0.03 acres of land with the building thereon, in R.S.No.51/19 of Kasaba Village in Kasaragod District. The market value of the building assessed by the Advocate Commissioner at Rs.51285 was enhanced to Rs.197250/-. The execution petition was allowed, CRP No.71 of 2018 -6- directing the defendants to surrender vacant possession of the building by receiving the compensation amount of Rs.1,97,250/-. 2. I Heard Senior Advocate V.V.Asokan for the revision petitioners and Advocate P.B.Krishnan for the respondents. 3. Learned Senior Counsel contended that the land Tribunal had committed gross illegality and impropriety in finding the claim of tenancy against the petitioners. It is contended that the petitioners had given satisfactory evidence concerning their claim. The Tribunal committed a mistake by denying the claim on the premise that the net value of the house at the time of construction was Rs.913.90. Reference is made to the definition of 'kudikidappukaran' under Section 2(25) of the Land Reforms Act and the distinction between sub clause (a) and (b) of Section 2(25), to contend that the -requirement that the cost should not exceed 750 rupees at the CRP No.71 of 2018 -7- time of construction is applicable only to a 'hut' and not a 'homestead'. In support of this contention, reliance is placed on the decision in ## _**Nellikandi Valiya Pocker v Pothachola Bava 2007**_ _**(1) KHC 954.**_ Relying on the decision in _**Ponnammal**_ _**v Gomez 1991 (1) KLT 901**_ , it is contended that for deciding the question of Kudikidappu I independently on available evidence, the provisions of Section 125(3)do not restrict the power of the revisional court under Section 115 of the Code of Civil Procedure. 4. Learned Counsel for the first respondent refuted the factual submissions and countered the legal contentions. According to the Counsel, the issue regarding Kudikidappu stands concluded by the finding of the Land Tribunal and cannot be collaterally attacked in a revision challenging the execution court’s order. It is submitted that the modification itself is filed on an experimental basis since neither the revision CRP No.71 of 2018 -8- petitioners nor respondents 2 to 7 are residing in the house. 5. There is merit in the contention of the learned Senior Counsel that the cost of construction is not material in deciding the question of kudikidappu in the instant case, insofar as the Specific case of the petitioners' is that the petition schedule property was taken on ground rent for the purpose of putting up a house (homestead). In the wake of such a contention, it is only appropriate to consider the meaning of Kudikidappu, as defined by Section 2(25) of the Land Reforms Act. _“25) "kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and -_ _(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and_ CRP No.71 of 2018 -9- _occupation of a portion of such land for the purpose of erecting a homestead; or_ _(b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and "kudikidappu" means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto:]_ _Explanation I. - In calculating the total extent of the land of a kudikidappuxaran for the purposes of this clause, three cents in a city or major municipality, shall be deemed to be equivalent to five cents in any other municipality, and three cents in a city or major municipality or five cents in any other municipality shall be deemed to be equivalent to ten cents in a panchayat area or township._ _Explanation II. - For the purposes of this clause,-_ _(a) "hut" means any dwelling house constructed by a person other than the person permitted to occupy it-_ _(i) at a cost, at the time of construction, not exceeding seven hundred and fifty rupees; or_ _(ii) which could have at the time of construction, yielded a monthly rent not_ CRP No.71 of 2018 -10- _exceeding five rupees, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79; and_ _(b) "homestead" means, unless the context otherwise requires, any dwelling house erected by the person permitted to have the use and occupation of any land for the purpose of such erection, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79.”_ The essential difference between 2(25)(a) and (b) is that, in the former, the person satisfying the other requirements, is permitted to have the use and occupation of the land for the purpose of erecting a homestead, whereas in later, the permission is to occupy a but situated in the land. Under Explanation II(a) to Section 2(25), for being classified as hut, the dwelling house situated in the land should have been constructed at a cost of seven hundred and fifty rupees at the time of construction or could have, at the time of construction, yielded a monthly rent not CRP No.71 of 2018 -11- exceeding five hundred rupees. It is pertinent to note that the meaning of ‘homestead’ available from Explanation II(b) makes no mention about the construction cost or rent. It is in the above context that, in _**Nellikandi Valiya Pocker**_ _(supra)_ , the learned Single Judge held the cost of construction not exceeding and monthly yield of rent to be relevant only in respect of a hut. The finding of the Land Tribunal and the executing court is that the petitioners are not in possession of the building assumes relevance. In this regard it is pertinent to note that, during his cross-examination, the first petitioner admitted that the property is occupied by a third person. It has also come out in evidence that the first petitioner is residing in his son's house. Later on, the petitioner attempted to improve his case by submitting that the present occupant, Abdul Hameed, is in permissive occupation. Yet another pertinent CRP No.71 of 2018 -12- aspect is the inconsistent version regarding tenancy put forth by the petitioners. While the petitioners contend that Mammunhi had perfected his kudikidappu right over the property, the purchase certificate is obtained by the first petitioner. This incongruity is sought to be explained by stating that the first petitioner had obtained the purchase certificate for and on behalf of the other legal heirs of Mammunhi also. The inconsistent stand and the undisputed fact that the first petitioner is not in possession or occupation of the building, dissuades me from interfering with the order of the Land Tribunal and that of the executing court. In the result, the civil revision petition is dismissed. Sd/- ## **V.G.ARUN JUDGE** scl/