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Souri Francis Vs. Parameswaran and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2081 of 1979-G
Judge
Reported inAIR1980Ker165
ActsKerala Land Reforms Act, 1964 - Sections 75(2)
AppellantSouri Francis
RespondentParameswaran and ors.
Appellant Advocate M. Krishnan Nair,; N.A. Augustine and; B. Gopakumar,
Respondent Advocate V.N. Swaminathan, Adv. and;Govt. Pleader
DispositionPetition allowed
Cases ReferredGovindankutty Menon v. State
Excerpt:
- - , was of the view that once the land tribunal is satisfied with the bona fides of the claim it is not within the province of that tribunal to decide the extent of the property required. ' 5. the principles are applicable in the instant case as well......which is described in the b schedule to the petition, in lieu of the kudikidappu now existing. the land tribunal allowed the petition upholding the petitioner's claim that the land was required by him bona fide for the purpose of his own residence.2. the respondents filed an appeal before the appellate authority. the appellate authority confirmed the finding of the land tribunal, that the landlord required the land bona fide for constructing a residence for himself. the appellate authority, however, held, that since the extent of the property, excluding 10 cents which the respondents are entitled to purchase, is 49 cents with a road-frontage of 149 links and the kudikidappu is situate in the north-eastern corner of the property a building can be constructed for the residence of the.....
Judgment:
ORDER

P. Janaki Amma, J.

1. The petitioner filed a petition under Section 75(2) of the Kerala Land Reforms Act, 1 of 1964, for shifting a kudikidappu owned by the first respondent situated in schedule A to the petition on the ground, that he bona fide required the land for constructing a building for his own residence. The extent of the land is 59 cents. The kudikidappu is situate in the north-eastern corner of the plot. The petitioner offered another site, which is described in the B schedule to the petition, in lieu of the kudikidappu now existing. The Land Tribunal allowed the petition upholding the petitioner's claim that the land was required by him bona fide for the purpose of his own residence.

2. The respondents filed an appeal before the Appellate Authority. The Appellate Authority confirmed the finding of the Land Tribunal, that the landlord required the land bona fide for constructing a residence for himself. The Appellate Authority, however, held, that since the extent of the property, excluding 10 cents which the respondents are entitled to purchase, is 49 cents with a road-frontage of 149 links and the kudikidappu is situate in the north-eastern corner of the property a building can be constructed for the residence of the landlord even without shifting the kudikidappu. The Appellate Authority, for the above reason, reversed the decision of the Land Tribunal and dismissed the petition for shifting. It is this order that is challenged by the landlord-petitioner.

3. On behalf of the petitioner it was contended that once it is found by the authorities that there is a bona fide requirement of the land for the construction of a building for the landlord the prayer for shifting should be allowed, and, it is not for the Appellate Authority to say whether the balance portion of the property is sufficient for the construction of the building. According to the revision petitioner, in deciding whether the land is required for the construction of the building the Land Tribunal and the Appellate Authority should take into account the status of the parties, their position in life and also the location of the land. The extent of the land in such cases should also be fixed taking into account the area that is likely to be occupied by the building to be constructed, and assuring that after the construction adequate space is left as appurtenant premises. If these considerations had weighed with the Appellate Authority, it is argued, that the Appellate Authority would not have inter-fered with the order of the Land Tribunal. It is the further case of the revision petitioner, that in the property in question there are two tanks and the balance space available would be only sufficient for the construction of the building. It is also argued on his behalf that the law applicable in such cases has not been correctly understood by the Appellate Authority.

4. Reference is made to the decisions in Korumban v. Land Tribunal, Telli-cherry, 1976 Ker LT 765 (FB), Kochu Narayanan v. Kunhi Moidu, 1978 Ker LT 67 and Janaki v. Addl. Land Tribunal, Kuthuparamba, 1979 Ker LT 91. In the Full Bench case referred to above this Court had occasion to decide the factors to be established by the applicant. The Full Bench observed :

'What extent is to be occupied by a building and its appurtenance must vary from case to case. A person constructing a six bed room bungalow must necessarily take more space than a person who constructs a three roomed house and in the latter case the extent of land required would be much less than the extent of land required for the former. Maybe there are cases where, in view of the nature of the construction even if the area of the property is more than 1 acre the person could seek shifting of the kudikidappu situate in the property.'

In Kochu Narayanan v. Kunhi Moidu, 1978 Ker LT 67, a Division Bench consisting Gopalan Nambiyar, C. J. and Narendran, J., was of the view that once the Land Tribunal is satisfied with the bona fides of the claim it is not within the province of that Tribunal to decide the extent of the property required. The above decision has been referred to and approved in Janaki v. Addl. Land Tribunal, Kuthuparamba, 1979 Ker LT 91. Reference may also be made to the decision in Mathukutty v. Thomas, 1976 Ker LT 120 : (AIR 1976 Ker 115), where Govindan Nair, C. J. observed:

'In determining the bona fides the extent of the land on which the kudikidappu is situate is not an irrelevant consideration; on the other hand it is a very relevant consideration. There may be cases where the land is so extensive that it would be unreasonable to expect any person bona fide to require the entire land for building purposes. In such cases the obvious answer to be given by the Land Tribunal would be that it had not been established that the person in possession of the land required the land for building purposes. But when the area diminishes from a very large extent to a reasonable holding the question becomes much more difficult to answer. It may be that one person may take the view that he wanted an acre of land where his residential house should be. Another may be content with 50 cents or less. The Tribunal may think that 25 cents would be enough. It is not the subjective viewpoints that should govern the matter. What is reasonable in the context must be the principle that should be applied. The location of the land would be a relevant factor. The land may be situate inside the corporation or the municipality or within the panchayat in an agricultural area. It is normal for people to have a larger extent of land for building purposes in a rural set up. It may not be unreasonable to state that one acre of land is required in a rural area for building purposes. The same certainly cannot be said if the land is inside the corporation or municipality. Along with this aspect must be considered the question whether it should not normally be left to the person in possession of the land to decide how much of land is required for the purpose of constructing a building or for the other purposes mentioned by the section. In other words when once it is established that land is required for building purposes, the extent of the land required as stated by the appellant should be given due consideration and unless his claim is found to be unreasonable as to spell lack of bona fides should be allowed.'

Subramonian Poti, J., had occasion to consider this aspect in Govindankutty Menon v. State, 1978 Ker LT 488. He said:

'The landowner was possessed of 58 cents of land in addition to wet land. In the 68 cents he is residing. A portion of the eastern side is occupied by the kudi-kidappukaran. That was what the Tribunal has held as sufficient to dismiss the application. But as to whether in the balance a building could be constructed is a matter to be decided taking into account relevant circumstances. The position in life occupied by the landowner for instance, would be of relevance, for, that would determine the nature of the building that he could normally intend to construct. The situation of the land such as whether it is in a city, a town or a village may also have bearing. The nature and lie of the property in which the kudikidappu is situate is also a relevant factor. That is the reason why I have expressed the view that the ultimate decision must be a question of fact. It is not possible to lay down any hard and fast rule as to the extent of the land in which the kudikidappu is situate which would justify asking the kudikidappu to be retained or to be shifted.'

5. The principles are applicable in the instant case as well. The Commissioner, who inspected the property, has reported, that there are two tanks in the property. He also inspected the building now being occupied by the petitioner. He concludes his report as follows:

(Matter being in Malayalam omitted. -- Ed.)

The petitioner is an advocate The property is situate in a Panchayat area, which is not densely populated and where people are accustomed to live in buildings with extensive appurtenant premises. The very fact that the framers of the Act allowed 10 cents of land to be purchased by a kudikidappukaran in a Panchayat area as against 5 cents in a Municipality and 3 cents in Municipal Corporation is recognition of the principle that different criteria should prevail in deciding the extent of land for a residential plot, dependent on the locality where the building is to be put. This aspect has not been noted by the Appellate Tribunal.

6. Taking into account the position and status of the petitioner, the way of life that he is accustomed to and the location of the plot, an extent of 59 cents cannot be said to be excessive or unreasonable for the construction of a residential building.

For the above reasons the order of the Appellate Authority is set aside and that of the Land Tribunal restored. The petitioner is entitled to have the kudikidappu shifted to the B schedule property as per the terms and conditions stipulated in the order of the Land Tribunal. The period fixed by the Land Tribunal will stand extended by three months from this date. The revision petition is allowed. The parties will bear their respective costs.


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