T. Kochu Thommen, J.
1. The appellant is the plaintiff in a suit for shifting of a kudikidappu and for arrears of rent. The suit was decreed by the trial court, finding that the appellant's claim for shifting was bona fide and based on valid grounds. On appeal by the kudikidappukars (the defendants) the lower appellate court reversed the decree of the trial court solely on the ground that at the time of requiring the kudikidappukars to shift, in terms of Section 75(2) of the Land Reforms Act. (the Act) and also at the time of sending the registered notice to them in terms of the proviso to Section 77 (1), the land-holder (appellant) was not the owner of the new site to which the kudikidappukars were required to shift. Subject to this, however, the learned Judge affirmed the finding of the trial court as regards the bona fide need of the land-holder and his compliance with the various conditions laid down by the statute, In other words both the courts have concurrently found that the appellant bona fide requires the site on which there is a kudikidappukaran for an industrial purpose and that all but one of the various provisions of Section 75 are fully satisfied.
2. That the appellant did not own the new site to which the kudikidappukars were asked to shift was not stated in the written statement or urged before the trial court. Apparently therefore no such issue was framed. The contention was taken up for the first time in the lower appellate court. It is however not disputed before me that the appellant purchased the new site only subsequent to the notice contemplated under the proviso to Section 77 (1) was issued; but long before the institution of tha suit.
3. Ext. D-1 notice is dated 10-8-1965. It was sent to the respondents (kudikidappukars) by registered post. Admittedly it was received by them on 12-8-1965. On 17-9-1965 the new site was acquired by the appellant, that being the date of registration of the deed of sale. A few days thereafter. i.e., on 22-9-1965 a reply notice was sent on behalf of the respondents to the appellant by registered post in answer to Ext. D-1. Nothing happened thereafter for about a year until the suit was filed on 7-8-1968.
4. I shall now refer to the relevant provisions of the Act as it stood at the material tone. Section 95 says:
'(1) No kudikidappukaran shall be liable to be evicted from his kudi-kidappu except on the following grounds namely:--
..... (2) Notwithstanding anything contained in Sub-section (1), the person in possession of the land on which there is a homestead or hut (hereinafter in this sub-section referred to as the land-holder) in the occupation of a kudikidappukaran may, if he bona fide requires the land -
(c) for any industrial purpose, re-quire the kudikidappukaran to shift to a new site belonging to him, subject to the following conditions, namely:--
(i) the landholder shall pay to the kudikidappukaran the price of the homestead, if any, erected by the kudikidappukaran;
(ii) the new site shall be fit for erecting a homestead and shall be within a distance of one mile from the existing kudikidappu;
(iii) the extent of the new site shall be the extent of the existing kudikidappu, subject to a minimum of three cents and a maximum of ten cents;
(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 complied with, the kudikidappukaran shall be bound to shift to the new site.
As I stated earlier, both the courts found that the appellant bona fide required the land for an industrial purpose. It was also concurrently found, on the basis of the evidence submitted by the commissioner, that the new site was suitable for the purpose of putting up the kudikidappu.
5. The only question therefore is whether the lower appellate court was right in reversing the finding of the trial court solely on the ground that at the time of requiring the kudikidapu-karan to shift and at the time when the registered notice was sent, the appellant has not become the owner of the new site.
Section 77 reads :
'If the kudikidappukaran does not comply with the requisition made by the person in possession of the land under Sub-section (2) of Section 75... ..to shift to a new site, the person in possession of the land ..... may institute a suit against him for the purpose. The court, on being satisfied that such person has complied with all the conditions mentioned in Sub-section (2) ..... of Section 75, may pass a decree for shifting the kudikidappu:
Provided that no such suit shall be instituted without giving the kudikidappukaran one month's notice by registered post'.
On the date of the registered notice, i.e., 10-8-1965 the appellant had not acquired the ownership of the new site. No objection on that score was raised by the respondents in their reply notice dated 22-9-1965. A few days before the date of the reply notice, the appellant had purchased the new site and it has been in his possession thereafter. The requirement under the proviso to Section 77 is a notice of one month. No suit for shifting shall be instituted until the kudikidappukaran has had notice for not less than a period of one month. The object of that proviso is that no kudikidappukaran who had been asked to shift shall be taken by surprise by a landholder by suddenly dragging him to court. If he refuses to comply with a request for shifting the intention to institute a suit should be communicated to him by a registered notice, and he should thus be given a further period of one month to decide whether or not to comply with the request for shifting. This as I see, is the purpose of the proviso to Section 77. In the present case no suit was filed after the notice was issued on 10-8-1965 for nearly a year. The kudi-kidappukars had thus a long time to contemplate the consequences of a refusal to comply with the request toshift.
6. Relying upon certain decisions of this Court, counsel for the respondents Sri L. G. Potti submits that failure to satisfy the requirement under Section 75 regarding ownership and possession of the new site is fatal to a suit for shifting. In Gopalan v. Oommen, (1975 Ker LT 284) a Division Bench of this Court considered the validity of an application lodged with the Land Tribunal for shifting of a kudikidappukaran at a time when the landholder had not come into ownership and possession of the new site. This Court pointed out that neither at the time of requiring the kudikidappukaran to shift nor at the time of sending him a notice to quit, nor at the time of the institution of the application, had the landholder become the owner in possession of the new site and he was therefore not competent to institute proceedings for shifting. Stating that although subsequent events can be taken note of by the Court in various circumstances, in a case such as the one that this Court was dealing with, the defect in the application for shift-ing could not be remedied by any subsequent event. The fact that the landholder had come into possession of the new site subsequent to the filing of the application before the Tribunal was not sufficient to cure the defect in the application. A valid notice requiring the kudikidappukaran to shift was a condition precedent to the filing of an application for shifting. The landholder who had no ownership and possession of the new site even when he approached the Tribunal was not competent to institute proceedings. This Court stated:
'.....We think that before the LandTribunal cam be approached, the condition precedent for so approaching the Land Tribunal, namely, requiring the kudikidappukaran to shift to a site belonging to the landlord must be complied with. This is an understandable provision, for there must be not only the possibility or even the probability of some land of some one being made available to the kudikidappukaran, but the kudikidappukaran must be satisfied that the landlord himself was possessed and was owning theland to which he has been asked to shift. Such being the requirement of the law, the Court will not be justified in toning down the rigour of the provision and enlarging upon the rights of the landlord to enable him to apply for shifting of kudikidappu on his land to some other land belonging to some one else.'
So saying this Court affirmed its earlier decisions in Damodaran v. Ragha-van, (1973 Ker LT 655) and Manap-patti Janaki v. Land Tribunal, Telli-cherry, (1973 Ker LT 923), wherein it was held that the requirement that the new site should belong to the landholder at the time of the institution of proceedings before the Tribunal was sine qua non for such proceedings. An unreported decision of Khalid 8. in O. P. No. 3748 of 1972 (Ker) which is relied on by the respondent's counsel Is also to the same effect.
7. These decisions show that the object of the Act can be easily defeated, if a landholder is allowed to approach the court or the Tribunal at a time when he is not in a position to put the kudikidappukaran in posses-sion of the new site. The mere pos-sibility or probability that he would come into- possession of the site in the near future is not enough. Nor is the fact that he did acquire the ownership and possession of the new site subsequent to the institution of the legal proceedings was sufficient to cure the defect in the application. The legislative intent is to prevent fraud and unlawful eviction. The kudikidappukaran is assured fixity in the land where he has kudikidappu right and he shall not be evicted therefrom on any grounds other than those specifically mentioned under Section 75. He may be required by the landholder to shift to a mew site belonging to the landholder for an object which is mentioned under Section 75 and the requirement shall be bona fide. The new site shall satisfy the conditions mentioned under the statute,
8. It is however not the object of the statute to come to the aid of a kudikidappukaran who hides and seeks the shelter of the statutory provisions purely on hypertechnical grounds such as the one that is now sought to be pressed into service, although it was not thought of at the time of the trial.
In my view, the notice satisfied in substance and spirit the requirement of the statute. The notice was indeed preceded by a request to shift to a new site. It is true that at the time of the request the new site did not be-long to the landholder. But as the courts found, the landholder's need was bona fide, his approach was straight and the offer was correct, although technically he had not yet become the owner of the new site. It would appear from the evidence that the landholder was perfectly justified in making an offer to the kudikidap-pukars because the land in question was being negotiated for an immediate purchase. He had given the particulars of the land when he made the offer. He was quite certain, as subsequent events proved, of his ability to obtain the ownership and possession of the new site. The site was purchased within a few weeks after the notice was issued. It would appear that the kudikidappukars were totally unaware of the fact that the site offered had not been purchased by the landholder, because there is no mention of this defect in the reply notice. The requirement under the statute is that the kudikidappukaran should be given an opportunity to consider the advantages or otherwise of complying with the request to shift to a new site. This fact in the instant case was capable of being objectively considered by the kudikidappukars. They had no knowledge of the defect in the offer made to them. They had apparently taken the offer on its face value and considered its merits, and decided not to accept it. Even after the notice was issued, the offer was not complied with indicating that they had set their minds against it. For nearly a year they continued to remain adamant, although the landholder had long become the owner of the new site. It cannot therefore be said that due opportunity for the kudikidappukars to consider the merits and demerits of the offer to shift, as contemplated under the statute, was in any manner denied to them. Both the courts having accepted the bona fide nature of the prayer for shifting, and the lawful object for which the request for shifting was made, I see no reason to interfere with such finding.
9. Respondent's counsel raises a contention, which again the resapondents had not taken in the trial court, to the effect that the requirement mentioned by the landholder was not for an industrial purpose. Both the courts examined this question and came to the conclusion that running of a cinema was an industry and the requirement mentioned, viz.. the construction of car park and canteen for the purpose of the cinema was also an industrial purpose. Relying upon the decision of this Court in Director, Central Plantation Crops Research Institute v. Secretary, Government Thottam Thozhilali Union (1974) Ker LT 475, the lower appellate court held that the employer carried on a trade or business or undertaking or calling to supply material services and thus he was engaged in an industry. It was further found that the car park and the canteen were required for the running of the cinema and they were thus required for an industrial purpose. I see no ground to interfere with such findings.
The appeal is based on valid grounds. The judgment and decree of the lower appellate court are accordingly set aside and those of the trial court restored. In the circumstances of this case I make no direction as to costs.