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Karal Puthen Purayil Kannan and ors. Vs. the Land Tribunal (Special Tahsildar) Edakkad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 392 of 1973
Judge
Reported inAIR1977Ker1
ActsKerala Land Reforms Act, 1964 - Sections 75(2) and 77(1); Constitution of India - Article 226
AppellantKaral Puthen Purayil Kannan and ors.
RespondentThe Land Tribunal (Special Tahsildar) Edakkad and anr.
Appellant Advocate P.V. Madhavan Nambiar, Adv.
Respondent Advocate V. Bhaskaran Nambiar,; C.R. Natarajan and; M.K. Anandakr
DispositionAppeal dismissed
Cases ReferredGopalan v. Oommen
Excerpt:
.....property to which notice referred - as such notice was valid - further 'kuzhikanam chamayam' right sufficient to satisfy requirement of section 75 (2) - held, appeal against eviction not maintainable. - - the first was that the notice issued under the proviso to section 77 (1) of the act did not even clearly state what was the alternate site to which the kudikidappukars were requested to shift. the land tribunal also considered this aspect and was not satisfied that the mistake was such as to invalidate the notice. we do not wish to go into the question in greater detail in this case because we are satisfied, that the question was not properly raised before the land tribunal or before the learned judge, we do not think we should deal with the matter for the first time in this..........judge. the desom in which the property was situate was wrongly described in the notice. the land tribunal also considered this aspect and was not satisfied that the mistake was such as to invalidate the notice. we do not think that in this appeal we would be justified in reversing the finding entered by the land tribunal and accepted by the learned judge.3. the second point though covered by a number of decisions of this court raises a point which may require reconsideration by this court in an appropriate case. we do not wish to express any opinion on this point in this case because not only was the point not specifically taken before the land tribunal but even in the original petition no point such as that was argued before, us, had been taken. we would however, in order at.....
Judgment:

Govindan Nair, C. J.

1. This is an appeal by the eight petitioners in O. P. No. 5025 of 1972 from the judgment dismissing the original petition. The appellants were the respondents in an application moved by the 2nd respondent herein under Section 77 read with Section 75 (2) of the Kerala Lend Reforms Act, 1963 (hereinafter referred to as the Act) for evicting the appellants. The Lend Tribunal ordered eviction. In the original petition two points were mainly raised at the time of the arguments. The first was that the notice issued under the proviso to Section 77 (1) of the Act did not even clearly state what was the alternate site to which the kudikidappukars were requested to shift. Secondly it was urged that in the alternate site, later identified, the 2nd respondent did not have full and absolute rights, she having had admittedly only kuzhikanam Chamayam and possession. The learned Judge found that though there has been a mistake in describing the property nobody had been really misled by the description and the appellants knew which was the property that was meant and in that regard therefore the notice was held to be a valid notice. The second point was also answered against the appellants on the basis that a kuzhikanam chamayam right would be sufficient for satisfying the requirement of Section 75 (2) of the Act where it speaks of 'a new site belonging to him.

2. Counsel for the appellants has urged before us again the two points that were taken before the learned Judge. On the first point we feel no hesitation in upholding the view taken by the learned Judge. The desom in which the property was situate was wrongly described in the notice. The Land Tribunal also considered this aspect and was not satisfied that the mistake was such as to invalidate the notice. We do not think that in this appeal we would be justified in reversing the finding entered by the Land Tribunal and accepted by the learned Judge.

3. The second point though covered by a number of decisions of this Court raises a point which may require reconsideration by this Court in an appropriate case. We do not wish to express any opinion on this point in this case because not only was the point not specifically taken before the Land Tribunal but even in the original petition no point such as that was argued before, us, had been taken. We would however, in order at least to alert the court regarding the possibility of a different view, indicate the arguments that have been advanced before us by counsel for the appellants.

4. The contentions raised by the appellant's counsel was that the notice itself must specify the property. This it is said, is clear from the provisions of Section 75 (2) of the Act read with the proviso to Section 77 (1) of the Act. He said that only 30 days will be given to the kudikidappukaran and that he would have to make up his mind whether he should comply with the request for shifting or not. For that he will have to decide on various matters; whether the land to which he is required to shift is a suitable land for erecting a kudikidappu; whether the land is situate within a distance of one mile from the existing kudikidappu; and what is more important whether the person who issued the notice had ownership, and possession of the site to which he has been requested to shift. In this regard reference was made to the definition of the term 'owner' in Section 2 (40) of the Act wherein the term has been defined as 'owner' means a person entitled to the absolute proprietorship of land and includes--

(a) a trustee in respect thereof;

(b) a pattadar of ryotwari land;

(c) a kanam tenant as defined in the Kanam Tenancy Act, 1955, but does not include a jenmi as defined in that Act.' Special reference was made also to Clause (iv) of Sub-section (2) of Section 75 of the Act. A person in possession of the land in which there is a kudikidappu can require the kudikidappukaran to shift to a new site belonging to him only subject to Clause (iv) of Sub-section (2) of Section 75 of the Act. Clause (iv) of Sub-section (2) of Section 75 is in these terms:--

(iv) the landholder shall transfer ownership and possession of the new site to the kudikidappukaran and shall pay to him the reasonable cost of shifting the kudikidappu to the new site,

Where the above conditions are com-plied with, the kudikidappukaran shall be bound to shift to the new site.'

5. The ownership, it was submitted, meant full proprietorship and so the words 'a new site belonging to him' occurring earlier in Sub-section (2) of Section 75 must be understood as the absolute ownership of land, to which a person is required to shift. To re-enforce the argument that a person who has fixity of tenure under the Act is not the full owner thereof it was pointed out that the rights of such persons were not indefeasible and reference was made to Sections 14 to 22 in Chapter 2 of the Act-It was further urged that kudikidappukaran should not be subject to the necessity of having to apply for the purchase of the jenmam right in regard to a property in which the person in possession of the land who had requested shifting of the kudikidappu did not have a full right in the sense of full ownership but had only rights conferred on a tenant by the Act. In the light of these arguments it was submitted that the decisions of this court that took a different view and held that what we may term a limited right, such as that of a tenant under the Act, is sufficient, require reconsideration. We shall briefly refer to those decisions. The earliest decision is that in O. P. No. 5658 of 1972 (Ker), Nambiar J. expressed the view:

'...... On the terms of the section, it seems unnecessary to prove that the applicant had jenm right. The section only speaks of a new site 'belonging' to the landlord......'

6. It is submitted that there has been no reference to Clause (iv) of Subsection (2) of Section 75 which has to be read with the earlier part of the section where it speaks of the person in possession of the land requiring his kudikidappukaran to shift to new site belonging to him. It is also said that the definition of the term 'owner' had not been referred to and the whole scheme of the Act had hot been borne in mind.

7. The next decision of this Court on the subject is, the decision in Amina v. Land Tribunal, Badagara (1974 Ker LT 496) decided on 27-3-1974. George Vadakkel J, stated his reasons thus in paragraph 4 of the judgment:

'..... Under the Kerala Land Reforms Act 1963 (Act 1 of 1964) a kanam-kuzhikanamdar has got fixity of tenure. Under Section 72 6f the Act all rights of the landlord' in respect of a kariam-kuzhikanam holding vest in the Government; and the kanam-kuzhikanamdar has under Section 59 of the Act the right to purchase the jenmam right. In any event he cannot be evicted and his possession of the kanam-kuzhikanam holding is not precarious, or depending on the will of another. In my view that is all what is intended when Clause (iv) says, that ownership and possession of the 'new site belonging to him' is to be transferred to the kudikidappukaran.'

8. This decision has been followed in O. P. No. 2846 of 1974 decided on 16-12-1974 (Ker) by Bhaskaran J, and has also been referred to by a Division Bench of this Court to which one of us was a party in W. A. No. 168 of 1974 decided on 18-12-1974. (Ker). That appeal was from the decision of Isaac J: in O. P. No. 2977 of 1973 decided on 25-1-1974 (Ker) wherein the learned Judge took the same view. There has not been any discussion in that case nor in the appeal judgment. Justice Eradi relied on the decision in Amina v. Land Tribunal, Badagara (1974 Ker LT 496) in Saphiya Umma v. Land Tribunal, Cannanore (1976 Ker LT 31) and earlier Bhaskaran J. in Kunhikannan v. Land Tribunal (1975 Ker LT (S N) 51) also took the view that 'the kuzhikanom right with fixity of tenure is sufficient for the purpose of complying with the requirement which says that the property should belong to the petitioner'. In the decision in Saphiya Umma v. Land Tribunal, Cannanore (1976 Ker LT 31) Eradi J. stated the reasons thus in paragraph 6:

'Admittedly the writ petitioner had a tenancy right over the B schedule pro-perty as on the date on which the notice Ext, P-1 was issued. By virtue of that tenancy right the writ petitioner was entitled to fixity of tenure and he was in a position to transfer permanent possession of the property in favour of the kudikidappukaran. A jenmam sale deed had been executed in favour of the applicant by the jenmi as per Ext. P-4 dated 25-7-1972. But, even apart from that the applicant had been conferred a right under the Act to get the jenmom right assigned in his favour by moving the Land Tribunal with an appropriate application in that regard;' That a property held by a person on tenancy right with the aforesaid, incidence can be validly offered as alternate site for the purpose of shifting a kudikidappukaran has been held by this Court , in Amina v. Land Tribunal, Badagara, 1974 Ker LT 496. I am in respectful agreement with said view. It therefore follows that the finding entered by the Land Tribunal on points Nos. (vi) and (viii) also cannot be allowed to stand.'

9. There has not been any full discussion with reference to the various provisions of the statute to which we have adverted to and we think it may perhaps be necessary to reconsider the question again when the matter arises. We must here note another argument advanced by counsel for the respondents.' He particularly relied on the decision of the Supreme Court in Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur (AIR 1965 SC 1923, Para. 14 at page 1929) and contended that 'belonging' does not mean belonging in full ownership. He also referred to Salmond's Jurisprudence for the purpose of finding a meaning to the word 'absolute' which may, justify the view taken by the decisions to which we have adverted to. We do not wish to go into the question in greater detail in this case because we are satisfied, that the question was not properly raised before the Land Tribunal or before the learned Judge, We do not think we should deal with the matter for the first time in this writ appeal.

10. Before closing we would like to mention that reliance was particularly placed on the decision of this Court in Gopalan v. Oommen (1975 Ker LT 284) by counsel for the appellants for his submission that a person seeking the shifting of a kudikidappu must have full ownership of the property to which the kudikidappukaran was asked to shift, on the date on which the notice was issued and that it would not be sufficient if the person in possession acquired the interest in the property at some subsequent time even if that be before the date on which the Tribunal passed the order. On this aspect also we express no opinion in this case.

We dismiss this appeal. We direct the parties to bear their costs.


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