## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**TUESDAY, THE 5TH DAY OF AUGUST 2014/14TH SRAVANA, 1936**
**CRP.No. 572 of 2009 ------------------------**
**AGAINST THE JUDGMENT IN A.A 21/2007 of APPELLATE AUTHORITY (LR), ALAPPUZHA DATED 17-12-2008**
**AGAINST THE ORDER IN OA 6/1999 of LAND TRIBUNAL, KOLLAM DATED 19-05-2007**
**REVISION PETITIONER(S)/PETITIONERS/APPELLANTS/RESPONDENTS:**
**------------------------------------------------------------**
**1. SUKUMARAN, S/O.KESAVAN, ASAMANDIRAM, VATTAPPADA, PLACHERRY, VALACODE VILLAGE PATHANAPURAM TALUK.**
**2. SAJINI, D/O.SUKUMARAN, ASAMANDIRAM, VATTAPPADA, PLACHERRY, VALACODE VILLAGE PATHANAPURAM TALUK, KOLLAM.**
**BY ADV. SRI.AJAYA KUMAR. G**
**RESPONDENT(S)/RESPONDENTS 1 AND 2 / APPLICANTS: -------------------------------------------------**
**1. R.PUSHPAN, ABHILASH MANDIRAM, PLACHERI P.O., VALACODE, PUNALUR.**
**2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOLLAM.**
**R1 BY ADV. SRI.R.S.KALKURA R2 BY GOVERNMENT PLEADER SRI.JIBU.P.THOMAS.**
**THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **CRP.No. 572 of 2009**
## **APPENDIX**
## **PETITIONERS' ANNEXURE :**
**A1 : COPY OF THE COMMUNICATION DATED 29/08/2009 ISSUED TO THE PETITIONER FROM THE APPELLATE TRIBUNAL (LR) ALAPPUZHA.**
**RESPONDENTS' ANNEXURES : NIL**
**//TRUE COPY//**
**P.A TO JUDGE**
**stu**
## **K.HARILAL, J.**
= = = = = = = = = = =
## **C.R.P.No.572 of 2009**
= = = = = = = = = = = = = = = Dated this the 5[th] day of August, 2014
**O R D E R**
The petitioners are the appellants in A.A.No.21/2007 on the files of the Appellate Authority (LR), Alappuzha as well as the respondents in O.A No.6/1999 on the files of the Land Tribunal, Kollam. The above original application was filed by the respondent herein under Sec. 80B of the Kerala Land Reforms Act, 1963 as amended by Act 35 of 1969 for the purchase of his kudikidappu in Sy.No.639/1/2/6/8 of Valacode Village, in which the appellants herein are the registered land owners. Initially, the Land Tribunal allowed the applicant to purchase 0.84 Ares of land as he was in possession of that much land only. Feeling aggrieved, he preferred A.A.No.77/2000 before the Appellate Authority (LR), Thiruvananthapuram contending that the kudikidappu is situated in Municipal area and he is entitled to purchase 5 cents of land. The Appellate Authority after examining
C.R.P.No.572 of 2009
2
the report of the Revenue Inspector and Certificate issued by the Municipal Chairman of the Punalur Municipality modified the order of the Land Tribunal by allowing the applicant to purchase 5 cents of land instead of 2 cents since his kudikidappu is situated in Municipal area. Against this order, the revision petitioners herein filed CRP No.72/2002 before this Court. This Court after observing that the revision petitioners had no opportunity to challenge the Certificate issued by the Municipal Chairman, Punalur, which was taken by the Appellate Authority as the sole proof to allow the applicant to purchase 5 cents, set aside the order of the Appellate Authority dated 29-06-2000 in A.A.No.77/2000 and the matter was remitted back to the Land Tribunal for fresh disposal in accordance with law. The Land Tribunal after the remand heard the matter in view of the remand order and held that the respondent herein is entitled to purchase 5 cents of land from the revision petitioners herein. Though, the revision petitioners
C.R.P.No.572 of 2009
3
preferred an appeal before the Appellate Authority, the Appellate Authority also concurred with the findings of the Land Tribunal and dismissed the appeal. This revision petition is filed challenging the concurrent findings of both authorities that the respondent is entitled to purchase 5 cents of property as the property is situated in Municipal area and the revision petitioners are holding 50 cents of property.
2. The learned counsel for the revision petitioners advanced two fold arguments challenging the concurrent findings of both authorities below. Firstly, he contended that there is no statutory mandate to grant 5 cents of property as kudikidappu in Municipal area. So also, there is no hard and fast rule for the same. Secondly, he contended that the entitlement of kudikidappu was also a matter in issue which ought to have been considered by the authorities below. In support of the arguments, the learned counsel for the revision petitioners cited **Madhavi Amma**
C.R.P.No.572 of 2009
4
**and others v. S.Prasannakumari and others** (2013 KHC 4223) and **Velayudan v. Varkey** (1987 KHC 384).
3. Per contra, the learned counsel for the respondent advanced arguments to justify the concurrent findings of the court below and contended that both arguments advanced by the learned counsel for the revision petitioners are unsustainable in view of the scope and extent of the remand order passed by this Court in CRP No.72/2002. The learned counsel further drew my attention to the statutory mandate under Sec.80A(3) and submits that if the landlord is in possession of 50 cents of property in Municipal area, the kudikidapukaran is entitled to purchase an extent of 5 cents of property.
4. Heard both sides. In view of the rival submissions advanced at the Bar, the question to be considered is, whether the concurrent findings of the authorities below that the respondent is entitled to purchase 5 cents of property is justifiable?
C.R.P.No.572 of 2009
5
5. Going by the impugned order and judgment under challenge, it could be seen that the matter has come up again before the Land Tribunal, pursuant to the order passed by this Court in CRP No.72/2002. The above CRP was filed challenging the order of the Appellate Authority enhancing the extent of property from 0.84 Ares to 5 cents. So, the enhancement of the extent of property granted by the Appellate Authority alone was challenged in that revision petition. Originally, the Land Tribunal has passed an order granting 0.84 Ares of property, against which the respondent alone filed appeal. The revision petitioners have not filed appeal challenging the granting of 0.84 cents of property to the respondent as kudikidapukaran. In short, the entitlement of kudikidappu was not challenged by the revision petitioners herein before the Appellate Authority in the earlier round of litigation. If that be so, I find that from that point onwards the revision petitioners are estopped from any contention arising the entitlement of kudikidappu
C.R.P.No.572 of 2009
6
right of the respondent herein. In short, thereafter, their challenge must be confined to the extent of land which the respondent is entitled to purchase. In view of the above finding on the basis of the facts of this case, I find that the decision in **Madhavi Amma's case** (supra) has no application in the instance case.
6. Coming to the another fold of the argument, going by Sec.80A(3) of the KLR Act, 1963, as amended by Act 35 of 1969, the extent of land entitled to be purchased by the kudikidappukaran is governed by the said section. The statutory mandate under the above section is that the extent of land which the kudikidappukaran is entitled to purchase under this section shall be 3 cents in city or major municipality or 5 cents in any other municipality or 10 cents in 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-
C.R.P.No.572 of 2009
7
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. On an analysis of the above section, I find that if the land owner is in possession of an extent of land above 5 cents of property in a Municipal area and found that the kudikidappukaran is entitled to purchase kudikidappu, certainly, he is entitled to purchase 5 cents of property and to the contrary, if the land owner is found in possession of less than 5 cents of property, the kudikidappukaran is entitled to purchase so much extent of property which is in his possession only. When applying the above proposition to the instant case, here, indisputably, the property is situating in Municipal area and the land owner is in possession of 50 cents of property. If that be so, certainly, the kudikidappukaran has right to purchase 5 cents of property. Considering the fact of the case on hand the decisions cited by the learned counsel for the petitioners have no application at all, as the
C.R.P.No.572 of 2009
8
facts are entirely different.
7. In the above view, I find that the concurrent findings of the authorities below that the respondent is entitled to purchase 5 cents of property is justifiable in view of Sec.80A(3) of the Act.
This revision petition is devoid of merits and dismissed accordingly.
**K.HARILAL, JUDGE.**
Stu
//True copy//
P.A to Judge
