Revision Petition Nos. 771, 780 & 786 of 2004 (KLR Act) - Legal Heirs of 1st Appellant v. Kuriappan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934** ## **CRP.No. 771 of 2004 ( )** **----------------------AA.26/1987 of A.A.(LR),THRISSUR OA.2178/1976 of LAND TRIBUNAL, THRISSUR** **REVISION PETITIONER(S)/LEGAL HEIRS OF 1ST APPELLANT: ---------------------------------------------------** **1. JANAMMA CHANDRAN, W/O.LATE CHANDRAN, KARYATTUKARA, VADAKKE VETTUVAZHI, ARANATTUKARA THRISSUR.** **2. GOPI, S/O.LATE VELAYUDHAN, KARAYATTUKARA, VADAKKE VETTUVAZHI, ARANATTUKARA THRISSUR.** **3. RAVI, S/O.LATE VELAYUDHAN, KARYATTUKARA, VADAKKE VETTUVAZHI, ARANATTUKARA THRISSUR.** **4. GIRIJA, D/O.LATE VELAYUDHAN, KARYATTUKARA, VADAKKE VETTUVAZHI, ARANATTUKARA THRISSUR.** **BY ADV. SRI.N.P.SAMUEL** ## **RESPONDENT(S)/RESPONDENTS:** - **--------------------------** **1. KURIAPPAN, S/O.KUNNATH THOMA,** - **SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **2. FRANCIS, S/O.KUNNATH THOMA,** - **SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **3. JOHNY, S/O.KUNNATH THOMA,** - **SURYAGRAMOM, KIZHAKKEKOTTA** **VATHUKKAL, THRISSUR. (DIED LRS IMPLEADED)** **4. ANTONY, S/O.KUNNATH THOMA,** - **SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **5. BABY, S/O.KUNNATH PAILY, SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **6. PAVOO, S/O.KUNNATH CHERU, SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **CRP.No. 771 of 2004 ( ) :2:** **7. MATHAI, S/O. LATE KUNNATH CHERU, SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **8. DR.THOMAS KUNNATH, S/O.LATE KUNNATH CHERU, SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **9. PAUL, S/O.LATE KUNNATH THOMAS, SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **10. ISSAC, S/O.LATE KUNNATH THOMAS, SURYAGRAMOM, KIZHAKKEKOTTA VATHUKKAL, THRISSUR.** **11. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT., THIRUVANANTHAPURAM.** ***ADDL. R12 TO R15)** **12. ROSY JOHN, S/O. LATE JOHNY KUNNATH HOUSE, HOUSE NO.73 NEHRU NAGAR, KURIACHIRA P.O, THRISSUR** **13. THOMAS J KUNNATH, S/O. LATE JOHNY KUNNATH HOUSE, HOUSE NO.73 NEHRU NAGAR, KURIACHIRA P.O, THRISSUR** **14. JAMES J KUNNATH, S/O. LATE JOHNY KUNNATH HOUSE, HOUSE NO.73 NEHRU NAGAR, KURIACHIRA P.O, THRISSUR** **15. JASMIN J JOHN, D/O. LATE JOHNY KUNNATH HOUSE, HOUSE NO.73 NEHRU NAGAR, KURIACHIRA P.O, THRISSUR** **(*ADDL. RESPONDENTS IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED R3 AS PER ORDER DT. 4.10.2007 IN I.A. 2692/2006)** **BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) BY ADV. SRI.K.JAYAKUMAR BY ADV. GOVERNMENT PLEADER SMT. SUSHEELA BHAT** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-11-2012, ALONG WITH CRP. 780/2004, CRP. 786/2004, THE COURT ON 29.11.2012 PASSED THE FOLLOWING:** ## **K. VINOD CHANDRAN, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - C.R.P. Nos.771, 780 & 786 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of November, 2012** ## **O R D E R** Applicants under Section 80B of the Kerala Land Reforms Act, 1963,(hereinafter referred to as the 'KLR Act'), or their legal heirs, are still before this Court agitating the claims set up in Original Applications filed in the year, 1976. Originally, there were seven applications, which were considered together by the Land Tribunal and an order was passed on 30.9.1976 rejecting the claim of 'kudikidappu' set up by the applicants. On appeal, the matter was remanded and again rejected by the Land Tribunal by order dated 7.4.1986. On further appeal, the appellate authority struck off the defence of the respondents and directed the Land Tribunal to assign kudikidappu rights within 30 days. The respondents were before this Court and; in CRP No. 1557 of 1990 and connected matters, this Court directed the appellate authority to re-consider the issue. On such re-consideration, the impugned order was passed. In the intervening years, many fell by the wayside and at present three applications are CRP 771, 780& 786/2004. : 2 : ## pursued in the three separate revisions. 2. The lands, which were the subject matter of the claims, were situated in Survey No.210 and 222 of Arunattukara Village in Thrissur District and comprised of 8 acres and 6 cents, which originally belonged to one Ramavarma Appan Thampuran. His legal heirs transferred it to one Nanikutty Amma and others by a deed of 1120 M.E. By Ext.B2, 1403/1120 M.E, there was again a transfer to one A.K.T.M. Sankaran Namboodiripad. The said Sankaran Namboodiripad transferred the land to the respondents by Ext.B1 deed No.4755/1121 M.E. The claim of the applicants before the Land Tribunal was that they had obtained permission from Appan Thampuran and had constructed pucca residential houses in the property and hence they ought to be assigned the rights under the KLR Act, treating them as 'kudikidappukars' defined under Section 2(25)(a) of the KLR Act. 3. The respondents produced Exts.B1 and B2 documents contending that at the time of purchase, there were 15 houses in the property which were all rented out, as is specifically evidenced by the recitals in the document. It was also the CRP 771, 780& 786/2004. : 3 : contention of the respondents that after purchase they had effected re-construction and the applicants before the Court were paying rent regularly to them; till it was discontinued at one point. The applicants immediately did a volte-face and contended that what was occupied by them were 'huts' within the definition of 'kudikidappukaran' making them entitled under sub clause (b) of Section 2(25). While the first remand order by the appellate authority was an open remand, the second order was one directing assignment of lands treating the applicants as 'kudikidappukars' under the Act; which was challenged in the batch of revision petitions referred to above. An understanding of the common order of this Court in the said revisions is necessary for the disposal of the present applications. 4. The earlier set of revisions were filed against the order of the appellate authority striking off the defence of the respondents under sub-rule (3) of Rule 80 of the Tenancy Rules and finding that the buildings in question satisfy the definition of 'hut', thus declaring entitlement to purchase land owner's right in respect of 10 cents each as 'kudikidappukars' under the Act. Before this Court, a preliminary objection was CRP 771, 780& 786/2004. : 4 : raised by the applicants that even in the earlier order, the appellate authority had declared the entitlement of the applicants under sub clause (b) of Section 2(25) and hence that issue was no more available for consideration. The landlords resisted this contention on the ground that at that point of time, as per the decisions of this Court, a revision was not maintainable from an order of remand. 5. This Court found that the Apex Court in **Mammu v. Hari Mohan(2000(1) KLT 835 (SC))** held that an order of remand passed by the appellate authority cannot be construed as an interlocutory order under Section 103 of the Act. However, noticing the binding precedents of this Court, The Supreme Court held that the said judgment can have only prospective effect. Hence, this Court held that the landlord could not be prevented from raising such a contention due to the specific prospective effect given to the later judgment of the Supreme Court. It was also found that the first remand order of the appellate authority was an open remand. The appellate authority's decision, striking off the defence, was found to be illegal. On the question of the claim falling under sub clause(b) or (a) of Section 2(25) this Court extracted the CRP 771, 780& 786/2004. : 5 : statements in the applications to the effect that the building occupied by the applicants were not huts and were houses constructed by them. This Court held that there was no dispute regarding the nature of the building and the contention on behalf of the appellants that once it is shown that the buildings in question are 'huts', then, the applicants are entitled to purchase the same; is absolutely without merit. This Court clearly found that the parties were not entitled to adduce any evidence on that point, since evidence could be adduced only to prove a disputed fact and not to disprove an admitted fact. The claims regarding their kudikidappu coming under sub clause (b) of Section 2(25) was held to be not sustainable, in view of the clear contrary admission. 6. On suffering the remand, the parties were again before the appellate authority. This Court had in the remand order specifically found that there was no scope for adducing any further evidence. The appellate authority also found that there cannot be any claim set up under sub clause (b) of Section 2(25). The revision petitioners before me also does not raise such a contention. The revision petitioners assert their rights under sub clause (a) of Section 2(25) and also CRP 771, 780& 786/2004. : 6 : reach out to Explanation II A to contend that by virtue of this specific amendment they need not prove any permission under the original land owner and the appellate authority ought to have declared their rights to get assignment since they were admittedly in occupation of the homestead in 1968. 7. According to the learned counsel for the respondents since the occupation of the applicants as on 16.8.1968 is not disputed, by virtue of Explanation II-A, they need not establish any permission from the original landlord. Mere occupation would, by the mandate of the explanation, create a fiction deeming such occupants to be 'kudikidappukarans'. Once that mandate to deem the applicants as a 'kudikidappukaran', qualified by a non-obstante clause, is accepted by this Court, then, this Court has to necessarily accept and declare the inevitable corollary flowing from such fiction and declare their rights to get assignment of the right of the land owner; is the case of the applicants. The learned counsel for the appellant relies on **Appukuttan v. Janakiamma(1988(1)KLT 512 SC)** and the interpretation given to Explanation IIA. He specifically draws my attention to paragraph 12 of the judgment and exhorts this Court to bear in mind, that the Act CRP 771, 780& 786/2004. : 7 : is a beneficial enactment intended to secure occupancy rights to farmers and agricultural labourers who do not have homestead lands and dwelling places of their own, for their occupation. 8. The Hon'ble Supreme Court in **Appukuttan's case (supra)** was concerned with Explanation II-A brought in by an amendment, in the year 1972. The learned Judges of the Supreme Court traced the history of the legislation and the interpretation given by this Court to Section 2(25) of the Act defining 'kudikidappukars'. Originally, Explanation II deemed any person who was in occupation of a 'kudikidappu' as on 11.4.1957 and who continued to be in such occupation till the commencement of the Act as being in occupation of such kudikidappu with permission as required under the said clause **.** This Court in **Gopalan v. Chellamma(1966 KLT 673)** held that the permission of the land owner should also have continued to be effective till the relevant day and should not have been withdrawn or terminated. Explanation II was substituted with a proviso, by KLR (Amendment) Act, 1969, providing that any person in occupation as on 16.8.1968 and continuing to be in such occupation till the commencement of CRP 771, 780& 786/2004. : 8 : the Act shall be deemed to be in occupation with permission as required under the said clause. Then, **Mariyam v. Ouseph Xavier (1971 KLT 709)** held that the initial leave to occupy remains to be obligatory and the protection is only to persons who had initially obtained permission to occupy homestead or hut. It was then that Explanation II A was brought about by way of KLR(Amendment) Act, 1972. The Hon'ble Supreme Court interpreted Explanation II-A as follows: By reason of this explicit provision, there is no scope whatever for restricting the class of persons entitled to the benefit of Explanation II-A to only those who are able to prove obtainment of initial permission to occupy a homestead or a hut thereon. Explanation II A equates an occupant of a homestead or a hut thereon during the relevant period with a kudikidappukaran as defined under the main clause. Such being the case, anyone satisfying the requirements of Explanation II A would automatically be entitled to have the status of a kudikidappukaran and to all the benefits flowing therefrom. In other words, a person falling under Explanation II-A has to be statutorily deemed as one permitted to occupy CRP 771, 780& 786/2004. : 9 : a homestead or the hut thereon as envisaged in subclauses (a) or (b) of clause (25) of S. 2. The only limitation placed by Explanation II A is that a person falling within the terms of the definition should satisfy the conditions laid down by the proviso to the Explanation viz.,that if he or his predecessor had not constructed the dwelling house, the house should not costwise exceed Rs.750/- or rentwise exceed a monthly rent of Rs.5/ and the occupant should not be in possession of land exceeding three cents in extent in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township either as owner or as a tenant on which he could erect a building. 9. Explanation II A was held to constitute a second limb of clause (25) to Section 2, entitling a person claiming kudikidappu to prove either initial permission to occupy the land and dwelling house without proving continuous possession or in the alternative to claim under Explanation II A by proving continuous occupation without necessity of even proving the obtainment of the initial permission. However, what remains significant is the limitation noticed by the CRP 771, 780& 786/2004. : 10 : Supreme Court that a person falling within the terms of the definition of Section 2(25), to claim benefit of Explanation II-A; has to satisfy the conditions laid down by the proviso. Hence, if the claimants or their predecessors-in-interest had not constructed the dwelling house, the construction cost should not have exceeded Rs.750/- and monthly rent exceeded Rs.5/-. The contention of the learned counsel is that the proviso is not applicable, in so far as in the instant case, the applicants claimed to have constructed the houses. 10. What is the evidence to this end? But, for the fact that the applicants asserted that the construction of the houses were made by them, no material was placed on record. It is very pertinent that after production of Exts.B1 and B2, the recitals of which show the existence of the buildings in the year 1120 M.E, the applicants made a volte-face in so far as trying to claim that the residences were all 'huts'. The attempt was to shift their claim to one under sub clause (b) of Section 2(25). Sub clause (b) speaks of permissive lawful possession of a hut belonging to the landlord. That claim was negatived by this Court in the earlier round as also the appellate authority on remand. That is no more available to CRP 771, 780& 786/2004. **==> picture [26 x 9] intentionally omitted <==** the revision petitioners nor is it claimed. But for the assertion that applicants themselves had constructed the houses nothing else was placed on record. The appellate authority relied on Exts.B1 and B2, to hold that the buildings in the property were in existence in the year 1120 M.E itself and the same were occupied by tenants. The recitals of the deed also indicate that rent was being paid by the occupants of such buildings. 11. Exts.B1 and B2 thus clearly indicate the existence of the residential buildings and the same being occupied on rent. The respondent landlord examined RWs 1 and 2 to prove that rent was collected from the applicants at the rate of Rs.10/-. Considering the issue of tax on buildings having been paid by the applicants, the appellate authority extracted the deposition of PW1 in O.A 2177/1976 to find that the occupants had been paying rent and only when it was discontinued, the land owner refused to pay the tax; and thenceforth it was collected from the occupants themselves. The appellate authority also notices the deposition of PW1 in crossexamination, to the effect that rent was being paid to Appan Thampuran. In such circumstances, it is evident that the CRP 771, 780& 786/2004. : 12 : constructions were not made by the applicants or their predecessors-in-interest. The limitation in the proviso to Explanation II-A applies squarely in these cases. 12. At the risk of repetition, it has to be noticed that, originally the claim of the applicants was that they built their houses with permission from the original landlord, viz.,Appan Thampuran. Confronted with Exts.B1 and B2 they shifted their stance and claimed that their claim was under sub-clause (b) of Section 2(25); giving up their earlier claim under subclause (a) of section 2(25). This Court in the earlier set of revision petitions negatived the claim under sub-clause (b) but remanded the matter to be considered afresh. This Court also noticed that despite the litigation having celebrated its silver jubilee; this Court had no option but to remand, since the appellate authority the last fact finding authority did not consider the pleadings and evidence in its proper perspective. 13. Explanation IIA was in the statute even before the applications were filed. No attempt was made to raise a claim under the explanation. Of course, that alone would not disentitle the claimants if Explanation IIA did not have a rider in the nature of a proviso. Explanation IIA by itself creates a CRP 771, 780& 786/2004. : 13 : legal fiction; but on the factum of occupation being established. But the proviso makes it incumbent on the applicant to either establish that the construction was made by them or their predecessor-in-interest or otherwise the cost of construction was less than Rs.750/- and monthly rent less than Rs.5/-. That makes it a mixed question of fact and law, which unfortunately, does not arise from the impugned order. 14. Examining the evidence, PW 1 in O.A 2177/1966 deposed that he had been paying rent, and only on its discontinuance the local authority started collecting tax from the occupants. The respondents' witness deposed that therent was Rs.10/-. Ext.C1 report of the Revenue Inspector dated 27.7.1976 with respect to the inspection of the residence of Velayudhan, applicant in OA 2178/76 shows that his residence is only a part of the building. The building was reported to have three parts; bearing house numbers 322, 324 and 325 of Ward No. III of Ayyanthole Panchayat. The other two parts were also reported to be in the occupation of two other persons; all on rental basis. The value of construction was reported to be above the value prescribed under clause (a) of Explanation IIA. The specific objection, of the claimants, that CRP 771, 780& 786/2004. : 14 : it was immaterial since their claim was under clause (a) as they were occupying homesteads erected by them, remains unsubstantiated. 15. If the applicants had a claim under Explanation II A then that should have been raised and established. Even before this Court, in the revisional stage, the applicants contended that the value of the building is immaterial. The relevant aspect according to them was who erected it. Legitimate claims have to be raised in a litigation at the first opportunity and a litigant cannot be permitted to shift their stance, at every point they are confronted with a rejection. Remand, is not the rule and is an exception. The applicants fully participated in the litigation and there is not even a single instance when they were prohibited from leading evidence or raising their legitimate claims. Legal proceedings cannot be an exercise in perpetuity and the system survives on finality. The instant proceedings suffered many a remand, at the hands of the appellate authority and also in revision before this Court. In fact the specific remand made by this Court by its order dated 4.4.2002, was with a direction to the appellate authority to dispose of the appeals afresh in accordance with CRP 771, 780& 786/2004. : 15 : law **with the pleadings and evidence already on record** . The present claim raised under Explanation IIA cannot be entertained at this stage. 16. Section 103 confers very limited jurisdiction on this Court to interfere with the orders of the lower authorities. This Court finds that with the materials on record, it cannot be held that the Taluk Land Board or the appellate authority has either decided erroneously or failed to decide any question of law. The Civil Revision Petitions are devoid of any merit and are liable to be rejected. Ordered accordingly with costs throughout. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge