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Kunjan Vava Vs. Pappy Amma Ammukutty Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 656 of 1972
Judge
Reported inAIR1973Ker169
ActsKerala Land Reforms Act, 1964 - Sections 75(3), 80A and 80A(2)
AppellantKunjan Vava
RespondentPappy Amma Ammukutty Amma and ors.
Appellant Advocate K. Sukumaran and; K.K. Usha, Advs.
Respondent Advocate G. Narayanan Nair and; K. Chandrasekharan Nair, Advs.
Excerpt:
.....75 (3) if the landholder in whose land there is a kudikidappu is entitled to only less than 1 acre of land and wants to put up a building in the property he can apply to the government to acquire other land for shifting the kudikidappu and under section 80-a, sub-section (2) it is stated that kudikidappukaran shall be entitled to apply for purchase of the kudikidappu only if the landholder does not apply to the government under sub-section (3) of section 75 for the acquisition of a land to which the kudikidappu may be shifted within a period of two years fromthe commencement of the land reforms (amendment) act of 1969. it is also provided in the proviso to that sub-section that if such application under section 75 (3) is rejected or if such person failed to pay the expenses for..........75 (3) if the landholder in whose land there is a kudikidappu is entitled to only less than 1 acre of land and wants to put up a building in the property he can apply to the government to acquire other land for shifting the kudikidappu and under section 80-a, sub-section (2) it is stated that kudikidappukaran shall be entitled to apply for purchase of the kudikidappu only if the landholder does not apply to the government under sub-section (3) of section 75 for the acquisition of a land to which the kudikidappu may be shifted within a period of two years fromthe commencement of the land reforms (amendment) act of 1969. it is also provided in the proviso to that sub-section that if such application under section 75 (3) is rejected or if such person failed to pay the expenses for.....
Judgment:
ORDER

G. Viswanatha Iyer, J.

1. The applicant for purchase of kudikidappu right under the Land Reforms Act (Act 1 of 1964) is the revision petitioner. The respondents are the landholders of the property in which kudikidappu is situate. In the application the applicant stated that this kudikidappu is situate in Survey 55/4 comprising 1 acre 64 cents. This property belongs to respondents 3 in number. The respondents are together stated to be entitled to a total extent of 2 acres 57.750 cents of land and they are shown in the relevant columns of the application among the category of persons entitled to more than 2 acres and less than 3 acres of land. The respondents contended that they have only 2 acres 57.750 cents of land on the whole, that they are tenants-in-common and therefore each will be entitled to less than 1 acre and they proposed to apply before the Government for acquisition of other lands for shifting the kudikidappu from the property where it is now situate. The Lend Tribunal without taking any evidence allowed the application stating that the respondents have not let in any evidence to prove that the applicant is not a kudikidappukaran. This is not the point in controversy. The Tribunal erred badly. On appeal by the respondents the Appellate Authority came to the conclusion that each of the respondents is entitled to only less then 1 acre they are entitled to apply to the Government under Section 75 (3) of the Land Reforms Act for acquiring other lands for shifting the kudikidappu and as it was stated that an application for acquisition has been filed on 16-12-1971 before the Government the application for purchase of a kudikidappu was not maintainable. In that view the application was dismissed. It is against that that this revision petition has been filed.

2. Two contentions are raised by the counsel for the revision petitioner. The first contention is that as the respondents are together entitled to more than 1 acre the applicant is entitled under Section 80-A to apply for purchasing the kudikidappu. In the application the applicant has stated that the respondents together are entitled to 2 acres 57.750 cents. They are not stated as constituting a family. They do not form an association and they do not also form a body of individuals. They only constitute co-owners in respect of this 2 acres 57.750 cents. So they do not together come under any category included in the definition of 'person' in Section 2, Clause 43 of the Land Reforms Act. As per law each will be entitled to hold only a fraction of this area and in the absence of any evidence or circumstance to show that they hold in different fractions each will be taken as entitled to only one-third of this extent. That means each will be entitled to less than 1 acre. At any moment they may partition and take a particular portion of the property exclusively. Each co-owner will be a separate person entitled to such rights as are allowed to him under Section 75 (3). In such circumstances it cannot be said that each is entitled to more than 1 acre.

Under Section 75 (3) if the landholder in whose land there is a kudikidappu is entitled to only less than 1 acre of land and wants to put up a building in the property he can apply to the Government to acquire other land for shifting the kudikidappu and under Section 80-A, Sub-section (2) it is stated that kudikidappukaran shall be entitled to apply for purchase of the kudikidappu only if the landholder does not apply to the Government under Sub-section (3) of Section 75 for the acquisition of a land to which the kudikidappu may be shifted within a period of two years fromthe commencement of the Land Reforms (Amendment) Act of 1969. It is also provided in the proviso to that Sub-section that if such application under Section 75 (3) is rejected or if such person failed to pay the expenses for shifting the kudikidappu then also the kudikidappukaran can apply for purchasing the kudikidappu. This right of a person, who has only less than one acre, to apply to Government for acquisition of another land to which the kudikidappu may be shifted being a statutory right this cannot be defeated by the omission of the other co-owners either to join in the application to Government or to comply with the other requirements of Section 75 (3). In this case the application for purchase was filed before the expiry of 2 years and during the pendency of the appeal and before the expiry of 2 years one landholder, it is stated has applied for acquisition of another land to which the kudikidappu may be shifted. Therefore, the contention of the revision petitioner that he is entitled to apply to purchase the kudikidappu even before the result of the application filed by the landholder before the Government is known cannot be sustained.

3. The second contention raised by the revision petitioner is even assuming that the application for acquisition has been made to the Government to acquire a land to which the kudikideppu may be shifted that by itself cannot be a bar to the maintainability of the application filed earlier. This contention appears to be correct. Under Section 75 (3) when a landholder applies to the Government to acquire a land to which the kudikidappu may be shifted there is no provision for giving a notice of such an application to the kudikidappukaran. The rules also do not provide for the issue of any notice to the kudikidappukaran for such an application. Under Section 80-A (2) kudikidappukaran is entitled to purchase the kudikidappu if the landholder's application for acquisition is rejected or if such person fails to pay the expenses for shifting the kudikidappu as required by Sub-section (3) (c) of Section 75. So, the petitioner is entitled to contend that his application should be kept pending until the fate of the application alleged to have been made by one landholder to the Government is known.

4. Therefore, I set aside the order of the Appellate Authority and of the Land Tribunal and remand the application for purchase of the kudikidappu to the Land Tribunal. I further direct the Land Tribunal to keep the application pending until the application filed by the landholder to acquire a land towhich the kudikidappu may be shifted is finally disposed of by the Government. It is needless to point out that if the respondent's application before the Government is rejected for any reason the Land Tribunal will proceed with the application in accordance with law.

5. The parties shall bear their costs.


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