T. Dhanalakshmi (Died) vs Thekkeyil Gopinath on 18 July, 2024

[Cites 10, Cited by 0]

Kerala High Court

T. Dhanalakshmi (Died) vs Thekkeyil Gopinath on 18 July, 2024

1. The present petition is directed against the order of RCP No.47 of 2018 dated 30.08.2024 and judgment of appellate authority dated 29.11.2023 in RCA No.102 of 2022 by upholding the eviction of the petitioner - tenant by rejecting the plea of kudikidappukaran as defined in Section 2(25) of the Kerala Land Reforms Act, 1963.

2. Respondent - landlord instituted an eviction petition against the petitioner under Section 11(2)(b) arrears of rent 11(3) bona fide need, section 11(4)(ii) for diminishing the value and utility and section 11(4)(iv) for reconstruction, of the Kerala Buildings (Lease and Rent Control) Act, 1965 on the premise that the scheduled building originally belonged to his father Sri.Sreedharan and by virtue of settlement deed bearing No.2212/2009 of the SRO, Chalapuram respondent - landlord became the owner. The aforementioned building was entrusted RCREV. NO. 48 OF 2024 -3- to the predecessors-in- interest of the petitioner - tenant deemed in Narayana Shetty by one Kuttan predecessor - in-interest of the respondent landlord as per the registered agreement bearing No.485/1932. The tenancy rights devolved upon the petitioner - tenant and attorned the respondent - landlord by paying the rent at the rate of Rs.50/- (Rupees Fifty only) per month till December, 2015 and thereafter defaulted and sought the eviction on the grounds referred to above by referring that the building has been allotted a number i.e., 7/121 and 7/122.

3. Petitioner - tenant opposed the aforementioned petition but admitted the fact that their predecessor-in- interest was tenant of the predecessor-in-interest of the respondent - landlord as per the existed agreement and had been paying Rs.50/- (Rupees Fifty only) per month but denied the need projected by the landlord. Apart from the aforementioned contention, also raised the objection with regard to the entitlement of kudikidappu RCREV. NO. 48 OF 2024 -4- rights and sought the matter to be referred to Land Tribunal as provided under section 125(3) of Kerala Land Reforms Act. Since the parties were at variance, the learned Rent Controller adjudicated the preliminary objection:

"7. The point The petition is filed for eviction under sections 11(2)(b), 11(3), 11(4)(ii) and 11(4) (iv) of Kerala Buildings (Lease and Rent Control) Act 2 of 1965 (Herein after the Act). According to the petitioner, the petition schedule building originally belonged to his father Sreedharan by virtue of document No. 2212/2009 of SRO, Chalappuram and in turn he became the owner of the building. The further contention of the petitioner is that the predecessor in interest of the respondents namely Narayanan Shetty had taken the building on lease from Kuttan, who is the predecessor in interest of the petitioner in 1932 as per the registered lease agreement No. 485/1932. According to the petitioner, the rent was later enhanced to Rs.50/- and the respondents paid rent till 2015 and thereafter defaulted on the payment of rent. It is also contended that the petitioner now requires the petition schedule building for starting an office RCREV. NO. 48 OF 2024 -5- cum residence by reconstructing the building. It is also contended that the building was in a dilapidated condition due to the irregular use and occupation of the respondents.

8. Resisting the petition, the respondents filed a detailed counter. The respondents admitted that their predecessor in interest, Narayanan Shetty had obtained the building on lease as per the registered lease agreement bearing No. 485/1932 from Kuttan. They also admitted that after death of Narayanan Shetty, the tenancy right devolved upon them and the monthly rent payable by them is Rs.50/-. Apart from the above contention, they would contend that they have 'Kudikidappu' right over the petition schedule building and therefore the matter isliable to be referred to the Land Tribunal.

9. It is relevant to note that the respondents have no claim over the land appurtenant to the building. They have no case that their predecessor took possession of the land appurtenant to the building in the year 1932 itself. It could be gathered from the contention of the respondents that they are claiming right only over the building. There is no dispute that the building was entrusted to Narayana Shetty in 1932.

RCREV. NO. 48 OF 2024 -6-

10. Now it is essential to have considered the meaning of the word 'kudikidappukaran'. The term 'kudikidappukaran' has been defined under section 2(25) of Kerala Land Reforms Act. It says that "kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent 3 cents in any city or major municipality, 5 cents in any other municipality or 10 cents in any Panchayath 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 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 of any land 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. In the case on hand, it should be noted that the petitioner has no clear case as to the acquisition of "kudikidappu" over the property wherein the building has been situated. There is no case for the respondents that his predecessor was permitted to occupy a RCREV. NO. 48 OF 2024 -7- hut. The petitioner has not produced any documents to establish that he is a "kudikidappukaran" under Kuttan. Admittedly, the respondent has no case that the building has been constructed by him. On consideration of the above aspects, I am of the view that the respondents have no consistent case as to their of "kudikidappu right". It appears that the above contention was taken only to prolong the matter. In the result, the petition is found maintainable and also found that the matter is not liable to be referred to the Land Tribunal."

4. In support of the case petitioner - tenant placed on record registered rent agreement bearing No.485/1932 entered between the predecessor-in- interest of the landlord and tenant which shows that the rent of the premises was Rs.5/- per month which was increased on time to time and lastly it was Rs.50/- (Rupees Fifty only) which had been paid, as per the assertions of the landlord only upto December, 2015. Except that, no other document was placed on record much less any right at any point of time was asserted in RCREV. NO. 48 OF 2024 -8- terms of the conditions referred to in sub-section 25 and the explanation given thereunder. Aforementioned plea was rejected and ordered for continuance of the petition on merits. Appeal preferred has also been dismissed.

5. Adv.Prasudha for Adv.Srinath Girish, learned counsel appearing on behalf of the petitioner - tenant relied upon the provisions of Section 2(25) (a) and (b), particularly (b) and explanation II thereto, to assert the claim of kudikidappu. She contended that as per Section 125(3) of the Act as when such claim is raised the civil court is required to stay the suit or other proceeding and refer the matter to the land tribunal. The conditions enumerated under Section 2(25) and explanation are completely attracted as per the contents of the document of 1932.

6. On the other hand, Sri.Jose Kurakose, learned counsel appearing on behalf of the respondent - landlord submitted that the plain and unambiguous reading of the provisions, leave no manner of doubt that it has to be a RCREV. NO. 48 OF 2024 -9- land and a hut whereas from the right day one, it was a building which was entrusted on rent to the predecessor

-in-interest of the petitioner-tenant at a particular rate of rent. Tenant failed to place on record any material that the cost of construction of the building as per the provisions was not more than Rs.750/- (Rupees Seven hundred and fifty only). In fact it is an old building which has diminished it's value and requires reconstruction, it is on that account eviction was sought under the available provisions of the Act and urged this Court for upholding the order with a direction to the Rent Controller for expeditious disposal of the pending eviction petition.

7. We have heard counsel for the parties and appraised the paper book.

8. Section 2(25) with clauses (a) and (b) and explanation I and II reads as under:

"25) ["kudikidappukaran" means a person who has neither a homestead nor any land exceeding RCREV. NO. 48 OF 2024 -10- 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 - [Substituted by Act No. 35 of 1969.]

(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 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:] [***] [Substituted by Act No. 17 of 1972.] 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 RCREV. NO. 48 OF 2024 -11- 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;

(ii) which could have at the time of construction, yielded a monthly rent not 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.

[Explanation IIA. [Inserted by Act No. 17 of 1972.] - Notwithstanding any judgement, decree RCREV. NO. 48 OF 2024 -12- or order of any Court, a person, who, on the 16th day of August, 1968, was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of January, 1970, shall be deemed to be a kudikidappukaran; Provided that no such person shall be deemed to be a kudikidappukaran-

(a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors-in-interest, if-

(i) such dwelling house was constructed at a cost, at the time of construction, exceeding seven hundred and fifty rupees; or

(ii) such dwelling house could have, at the time of construction, yielded a monthly rent exceeding five rupees; or

(b) if he has a building or is in possession of 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, either as owner or as tenant, on which he could erect a building.]"

RCREV. NO. 48 OF 2024 -13-

9. On perusal of the aforementioned provisions of the Act, it is evident that for claiming the right of kudikidappu a person is required to suffice certain requirements i.e., should not be owning three(3) cents of land or more than three(3) cents of land in any Municipality and had been paying the rent initially at Rs.5/- (Rupees Five only) and not more than Rs.50/- (Rupees Fifty only) with a further condition that the cost of construction at the time when inducted as a tenant was not more than Rs.750/- (Rupees Seven hundred and fifty only). No doubt the predecessor - in- interest of the petitioner - tenant was inducted by virtue of the registered document No.485/1932 on payment of rent of Rs.5/- (Rupees Five only) per month. If at all the conditions extracted above were in existence or in favour of the petitioner - tenant, no explanation has come in not asserting the rights by setting up the claim as provided under Section 72K of Act. Section Same reads as under:

RCREV. NO. 48 OF 2024 -14-

"72K. Issue of certificate of purchase. (1) As soon as may be after the determination of the purchase price under Section 72F Lor the passing of an order under Sub-section (3) of Section 72MM] the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any."

Petitioner rather continued to atorn the subsequent

- landlord that is successor-in-interest of the previous landlord by paying the enhanced rent at the rate of Rs.50/-(Rupees Fifty only). In such circumstances the relationship between the parties were none but of landlord and tenant. It has become a practice amongst tenants occupying the old buildings since time immemorial to claim such right for protraction of the trial under the Act which prevents an expeditious disposal for vindication of the grievance of the needy landlords. Acquiescence of relationship of landlord and RCREV. NO. 48 OF 2024 -15- tenant is also a matter of ponderance for rejecting the claim.

In view of what has been noticed, we do not find any illegality and perversity in the findings arrived by the courts below. Petition sans merit, accordingly dismissed.

Sd/-

AMIT RAWAL JUDGE Sd/-

EASWARAN S. JUDGE vv

Unlock Advanced Research with PRISMAI

Kerala High Court