Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2735-2736 OF 2005
MADHAVI AMMA & ORS. …Appellants
VERSUS
S. PRASANNAKUMARI & ORS. …
Respondents
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. These appeals are directed against the common
judgment of the Division Bench of the High Court of Kerala at
Ernakulam dated 18.12.2002 passed in CRP No.1411/1996
(C) and CRP No.833/1996(H). CRP No.1411/1996 (C) was
preferred by one Appukuttan Nair along with the appellant
(s) herein challenging the decision of the Rent Control
Appellate Authority, Thiruvananthapuram dated 28.10.1995
in RCA No.133/1991 by which the eviction ordered by the
Rent Control Court in its order dated 02.7.1991 in RCP
No.140/1985 was confirmed. CRP. No.833 of 1996 (H) was
Civil Appeal Nos.2735-2736 of 2005 1 of 41Page 2
preferred by the respondents herein challenging the order of
the Appellate Authority (LR), Attingal in AA No.37/91 dated
13.11.1995 by which the order of the Land Tribunal,
Thiruvananthapuram dated 19.02.1991 in OA No.78/1988
filed by the predecessor of the appellant (s), namely,
Appukkuttan Nair under Section 80B of the Kerala Land
Reforms Act for the purchase of his Kudikidappu right in
respect of survey No.1536/A of Vanchiyoor Village,
Thiruvananthapuram Taluk was reversed.
2. By the common order of the Division Bench, the eviction
ordered by the Authorities under the Kerala Rent Control Act,
1963 and Kerala Buildings (Lease and Rent Control) Act,
1965 was confirmed and the order of the appellate authority
dated 13.11.1995 in AA 37/1991 was set aside.
3. To trace the brief facts,
the respondents landlord filed
RCP No. 140/85 for eviction of the tenant, sub-tenant and
other occupants under the provisions of the Kerala Buildings
(Lease and Rent Control) Act, 1965 hereinafter called ‘the
1965 Act’.
When that eviction petition was pending, at the
Civil Appeal Nos.2735-2736 of 2005 2 of
41Page 3
instance of one of the tenants, who was predecessor of the
appellant (s) herein filed a petition under Section 125 (3) of
the Kerala Land Reforms Act, 1963 hereinafter called ‘the
1963 Act’ by which the predecessor of the appellant (s)
claimed rights as a Kudikidappukaran.
The learned Rent
Controller referred the issue as to
whether such a claim
made by the tenant was admissible, to the Land Tribunal,
having jurisdiction over the area in which the land situated
together with the relevant records for the decision on that
question.
4. Be that as it may, the tenant also filed an application
under Section 80B of the 1963 Act for purchase of
Kudikidappu under his occupation of the lands before the
Land Tribunal.
By independent orders dated 19.2.1991, the
Land Tribunal returned a finding in the Reference made by
the learned Rent Control Authority to the effect that the
predecessor-in-interest of the appellant (s) did not possess
any Kudikidappu rights.
In the application filed under Section
80B of the Act also such a claim came to the rejected.
Having regard to the provisions contained in Section 125 (5)
Civil Appeal Nos.2735-2736 of 2005 3 of
41Page 4
of the 1963 Act, the Rent Control proceedings in RCP 140/85
was determined holding that the tenant’s right as a
Kudikidappukaran was not maintainable and thereafter the
eviction petition was also ordered on merits in favour of the
respondent-landlord herein.
5. On the side of the appellant (s), a separate appeal was
preferred in AA 37/91 as against the rejection of the
application under section 80B of the 1963 Act which came to
be allowed by the Appellate Authority by its order dated
13.11.1995. As against the order of the Rent Control
Authority in RCP No.140/85 dated 2.7.1991 on behalf of the
appellant(s), an appeal was also preferred in RCA
No.133/1991 before the Rent Control Appellate Authority.
The said appeal was dismissed by order dated 28.10.1995.
6. It is in the above stated background, the Division Bench
of the High Court passed the impugned order confirming the
order of eviction as against the appellant (s) and also setting
aside the order of the appellate authority dated 13.11.95 in
AA 37 of 1991 passed under the provisions of 1963 Act.
Civil Appeal Nos.2735-2736 of 2005 4 of 41Page 5
7. We heard Mr. Romy Chacko, Advocate for the
appellant(s) and Sri Balakrishnan, learned senior counsel for
the respondents. The learned counsel for the appellant(s)
vehemently contended that irrespective of the decision of
the Land Tribunal in its order passed in the Reference Case
being RC No.16/89 dated 19.2.1991 which was
acknowledged, approved and accepted by the learned Rent
Control Authority in its ultimate order of eviction dated
02.7.1991, the order which came to be passed by the
appellate authority under the 1963 Act in AA 37 of 1991
would prevail which has ultimately concluded that the
appellants’ right as Kudikiddappukaran was well-founded. In
other words, according to learned counsel as the claim of the
appellant(s) as Kudikiddapkaran under the provision of 1963
Act was substantial in nature which has been examined and
held in their favour by the concerned authority under the
provision of the 1963 Act, the same should prevail over the
rent control proceedings which was contrary to the decision
passed under the 1963 Act.
Civil Appeal Nos.2735-2736 of 2005 5 of 41Page 6
8. As against the above submission, Sri Balakrishnan,
learned senior counsel for the respondent-landlord
contended that the claim of the appellant(s) as the
Kudikidappukaran having been rejected by the authority
constituted under the 1963 Act, in a Reference made to it
which issue was also subject matter of consideration in the
appeal preferred against the order of the Rent Control
Authority, namely, before the Rent Control Appellate
Authority as provided under Section 125(6) of the Act, the
said decision could alone determine the rights of the
appellant(s) even as regards the status as Kudikidappukaran
and any contrary finding made in an application under
Section 80B of the 1963 Act cannot prevail over the
proceedings under Section 125 of the 1963 Act.
9. The crucial question which arises for consideration in
this appeal is as to what is the scheme of the Act in regard to
the decision as to the status of a person as
Kudikidappukaran, his rights and entitlements on the one
hand and the effect of the decision of the Civil Court or any
other authority in deciding an issue relating to the rights of a
Civil Appeal Nos.2735-2736 of 2005 6 of 41Page 7
landlord as against a tenant in which any question is raised
by the tenant claiming rights as a Kudikidappukaran.
10. In order to decide the above question some of the
relevant provisions of the 1963 Act require to be noted,
namely, Section 2 (25) the definition of ‘Kudikidappukaran’,
Section 79A which prescribes the customary and other rights
of Kudikidappukaran, Section 80 which prescribes the
procedure for the registration of a person as
Kudikidappukaran, Sections 80A and 80B which prescribe the
right of Kudikidappukaran, to purchase his Kudikidappu
rights and the procedure to be followed for effecting such
purchase. Under Section 102 of the Act the right of appeal
against an order passed under Section 80B of the 1963 Act is
provided. Provision for revision before the High Court is
provided under Section 103 of the Act as against any
Appellate Authority’s decision. There is an in built provision
under Section 125 for making a Reference to a Land Tribunal
to decide the question about the status of a person as
Kudikidappukaran and further appeal remedy against such a
decision. The said provisions are as under:
Civil Appeal Nos.2735-2736 of 2005 7 of 41Page 8
“2.(25) "Kudikidappukaran" means a person
who has neither a homestead nor 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, 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 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:
[xxxx]
Explanation I. – In calculating the total extent
of the land of a Kudikidappukaran 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 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.
Civil Appeal Nos.2735-2736 of 2005 8 of 41Page 9
(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; or
(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. – Notwithstanding any
judgement, decree 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 KudikidappukaranCivil Appeal Nos.2735-2736 of 2005 9 of 41Page 10
(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];
Explanation III. – Where any Kudikidappukaran
secures any mortgage with possession of the
land in which the Kudikidappu is situate, his
Kudikidappu right shall revive on the
redemption of the mortgage, provided that he
has at the time of redemption no other
homestead or any land exceeding 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.
Explanation IV. – Where a mortgagee with
possession erects for his residence a
homestead, or resides in a hut already in
existence, on the land to which the mortgage
relates, he shall, notwithstanding the
redemption of the mortgage, be deemed to be a
Civil Appeal Nos.2735-2736 of 2005 10 of 41Page 11
Kudikidappukaran in respect of such homestead
or hut, provided that at the time of the
redemption-
(a) he has no other Kudikidappu or residential
building belonging to him, or any land
exceeding 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
(b) his annual income does not exceed two
thousand rupees.
Explanation V. – Where a Kudikidappukaran
transfers his right in the Kudikidappu to another
person, such person shall be deemed to be a
Kudikidappukaran, if-
(a) he has no other homestead or any land in
possession, either as owner or as tenant, on
which he could erect a homestead; and
(b) his annual income does not exceed two
thousand rupees,
Explanation VI. – For the purposes of this
clause, a person occupying any hut belonging to
the owner of a plantation and situate in the
plantation shall not be deemed to be a
Kudikidappukaran if such person was permitted
to occupy that hut in connection with his
employment in the plantation, unless
(a) he was, immediately before the
commencement of this Act, entitled to the rights
Civil Appeal Nos.2735-2736 of 2005 11 of 41Page 12
of a Kudikidappukaran or the holder of a
protected ulkudi or Kudikidappu under any law
then in force; or
(b) he would have been entitled to the rights of
a Kudikidappukaran if the area in which that hut
is situate had not been converted into a
plantation subsequent to his occupation of that
hut.
[Explanation VII. – For the removal of doubts it
is hereby declared that a person occupying a
homestead or hut situate on a land held or
owned by the Government of Kerala or the
Government of any other State in India or the
Government of India shall not be deemed to be
a Kudikidappukaran];
[79A. Customary and other rights of
Kudikidappukaran. - (1) Notwithstanding
anything contained in any law, or in any
contract, or in any judgment, decree or order of
court, the Kudikidappukaran shall be entitled to
all rights accrued to him by custom, usage or
agreement and which he was enjoying
immediately before the commencement of this
Act.
(2) Notwithstanding anything contained in any
law, or in any judgment, decree or order of
court, but without prejudice to any rights to
which a Kudikidappukaran may be entitled
under any other law for the time being in force
or under any custom, usage or contract a
Kudikidappukaran shall in respect of his
Kudikidappu have all the rights and privileges
conferred on the owner of a land under the
Indian Easements Act, 1882, as if the
Kudikidappukaran were the owner of his
Kudikidappu from the date on which the hut or
Civil Appeal Nos.2735-2736 of 2005 12 of 41Page 13
homestead, as the case may be, was occupied
or erected.
(3) Notwithstanding anything contained in any
law, or in any judgment, decree or order of
court, or in any contract it shall not be
necessary to obtain the consent of the owner or
occupier or both of the land in which a
Kudikidappu is situate, to lay down or place any
electric supply line or other work on, over or
under such land for the purpose of supply of
electrical energy to the Kudikidappu for
domestic consumption and use.
(4) Notwithstanding anything contained in any
law, or in any judgment, decree or order of
court, or in any contract, it shall not be
necessary to obtain the consent of the owner or
occupier or both of the land in which a
kudikidappu is situate to lay down any pipe or to
carry out any other work on, over or under such
land for the purpose of supply of water to the
Kudikidappu for domestic consumption and use.
Explanation. – For the purpose of this section,
enjoyment of any benefit or concession for a
continuous period of three years immediately
preceding the commencement of this Act shall
be deemed to be enjoyment of a right accrued
to the Kudikidappukaran by custom, usage or
agreement.]
80. Register of Kudikidappukars. - (1) The
Government shall cause a register of
Kudikidappukars [within the limits of each local
authority to be prepared and maintained.]
(2) The register shall showCivil Appeal Nos.2735-2736 of 2005 13 of 41Page 14
(a) the description of land in which the
Kudikidappu is situate;
(b) the location of the Kudikidappu and its
extent;
(c) the name of the landowner and of the person
in possession of the land in which the
Kudikidappu is situate;
(d) the name and address of the
Kudikidappukaran; [xxxx]
[(dd) the rights referred to in section 79A; and
(e) such other particulars as may be prescribed.
[3) Subject to such rules as may be made by the
Government in this behalf, the local authority
shall prepare a register of Kudikidappukars
within its jurisdiction.
(4) The register shall be maintained by the local
authority in such manner as may be prescribed.
(5) Any person aggrieved by the registration of a
Kudikidappukaran under sub-section (3) or the
refusal to register a person claiming to be a
Kudikidappukaran may, within ninety days from
the date of registration or refusal, as the case
may be, appeal-
(a) to the Revenue Divisional Officer having
jurisdiction, where the decision appealed
against is that of a municipal corporation or a
municipal council;
Civil Appeal Nos.2735-2736 of 2005 14 of 41Page 15
(b) to the Tahsildar having jurisdiction, in other
cases.
(6) On receipt of an appeal under sub-section
(5), the Revenue Divisional Officer or the
Tahsildar, as the case may be, may call for the
record of any proceeding which has been taken
by the local authority under this section and
may make such enquiry or cause such enquiry
to be made and may pass such orders thereon
as he thinks fit:
Provided that no order prejudicial to any person
shall be passed without giving him an
opportunity of being heard.
(7) For the purposes of this section, "local
authority" shall not include a cantonment
board.]
[80A. Right of Kudikidappukaran to
purchase his Kudikidappu. - (1)
Notwithstanding anything to the contrary
contained in any law for the time being in force,
a Kudikidappukaran shall, subject to the
provisions of this section, have the right to
purchase the Kudikidappu occupied by him and
lands adjoining thereto.
(2) xxx xxx
(3) The extent of land which the
Kudikidappukaran is entitled to purchase under
this section shall be three cents in city or major
municipality or five cents in any other
municipality or ten cents in a panchayat area or
township: xxx xxx
(4) xxx xxx
Civil Appeal Nos.2735-2736 of 2005 15 of 41Page 16
(5) xxx xxx
(6) xxx xxx
(7) xxx xxx
(8) xxx xxx
(9) xxx xxx
(10) xxx xxx
(11) xxx xxx
(12) xxx xxx
80B. Procedure for purchase by
Kudikidappukaran. - (1) A Kudikidappukaran
entitled under section 80A to purchase the
Kudikidappu occupied by him and lands
adjoining thereto may apply to the Land
Tribunal for such purchase.
(2) An application under sub-section (1) shall be
in such form and shall contain such particulars
as may be prescribed.
(3) The Land Tribunal shall, after giving notice to
the Kudikidappukars in the land in which the
Kudikidappu is situate and other persons
interested in the land and after such enquiry as
may be prescribed, pass such orders on the
application as it thinks fit:,
Provided that where an application under subsection (1) of section 77 in respect of the
Civil Appeal Nos.2735-2736 of 2005 16 of 41Page 17
Kudikidappu is pending, the Land Tribunal shall
not pass any order under this sub-section before
the disposal of that application.
(4) An order under sub-section (3) allowing an
application shall specify.-
(i) the extent of land which the
Kudikidappukaran is entitled to purchase;
(ii) the purchase price payable in respect of the
land allowed to be purchased by the
Kudikidappukaran;
(iii) the amounts due to the person in possession
of the land in which the Kudikidappu is situate
and other persons interested in the land;
(iv) the value of encumbrances subsisting or
claims for maintenance or alimony charged on
the land allowed to be purchased by the
Kudikidappukaran;
(v) the amount payable to the holder of the
encumbrance or the person entitled to the
maintenance or alimony and the order of priority
in which such amount is payable;
(vi) such other particulars as may be prescribed.
(5) If the person in possession of the land in
which Kudikidappu is situate or the landowner or
the intermediary, if any, of the land is liable to
pay any amount to the Kudikidappukaran
towards the price of the homestead or the cost
of shifting the Kudikidappu, the Land Tribunal
shall in passing orders on the application for
Civil Appeal Nos.2735-2736 of 2005 17 of 41Page 18
purchase set off such amount against the
purchase price payable to such person.
(6) Where the right, title and interest of the
person in possession of the land in which the
Kudikidappu is situate or any other person
interested in the land form part of the security
for any encumbrance or charge for maintenance
or alimony, the Land Tribunal shall, for the
purpose of determining the value of the
encumbrance or the charge for the maintenance
or alimony relating to the portion in respect of
which purchase is allowed, apportion the entire
encumbrance or charge for the maintenance or
alimony between the land in which the
Kudikidappu is situate and the portion allowed
to be purchased in proportion to the values of
the two portions.
(7) Where the person in possession of the land
in which the Kudikidappu is situate is a tenant,
the purchase price payable in respect of the
land to be purchased shall be apportioned
among the landowner, the intermediaries, if
any, and the tenant in possession of the land in
proportion to the profits derivable by them from
the holding.
Explanation. - "Profits derivable from the land"
shall be deemed to be equal to,-
(i) in the case of a landowner, the rent which
he was entitled to get from the tenant holding
immediately under him;
(ii) in the case of an intermediary, the difference
between the rent which he was entitled to get
Civil Appeal Nos.2735-2736 of 2005 18 of 41Page 19
from his tenant and the rent for which he was
liable to his landlord; and
(iii) in the case of the tenant in possession, the
difference between the net income and the rent
payable by him; and the rent payable by such
tenant and the intermediary for the purposes of
this Explanation shall be as calculated under the
provisions of this Act.
102 - Appeal to appellate authority. - (1)
The Government or any person aggrieved by
any order of the Land Tribunal under sub-section
(2) of section 12, sub-section (3) of section 13A,
section 22, section 23, sub-section (2) of section
26 (where the amount of arrears of rent claimed
exceeds five hundred rupees), section 31,
section 47, sub-section (3) or sub-section (4) of
section 48, sub-section (3) of section 49, subsection (6) of section 52, section 57, sub-section
(5) of section 66, section 72F, section 73, subsection (2) of section 77, section 80B, subsection (4) of section 90, section 106 or section
106A may appeal against such order within such
time as may be prescribed to the appellate
authority.
(2) …………….
(3) ……….......
(4) …………….
103 - Revision by High Court (1) Any person
aggrieved by -
(i) any final order passed in an appeal against
the order of the Land Tribunal or;
(ii) xxx xxx
Civil Appeal Nos.2735-2736 of 2005 19 of 41Page 20
(iii) xxx xxx
may, within such time as may be prescribed,
prefer a petition to the High Court against the
order on the ground that the [appellate
authority or the Land Board, or the Taluk Land
Board], as the case may be, has either decided
erroneously, or failed to decide, any question of
law.
(1A) ……………
(1B) ……………
(2) The High Court may, after giving an
opportunity to the parties to be heard, pass
such orders as it deems fit and the orders of the
appellate authority or the Land Board, 1or the
Taluk Land Board as the case may be, shall,
wherever necessary, be modified accordingly.
(3) xxx xxx
(4) The power of the High Court under this
section may be exercised by a Bench consisting
of a Single Judge of the High Court.
125 - Bar of jurisdiction of civil courts. - (1)
No Civil Court shall have jurisdiction to settle,
decide or deal with any question or to determine
any matter which is by or under this Act
required to be settled, decided or dealt with or
to be determined by the Land Tribunal or the
appellate authority or the Land Board or the
Taluk Land Board or the Government or an
officer of the Government:
Provided that nothing contained in this subsection shall apply to proceedings pending in
Civil Appeal Nos.2735-2736 of 2005 20 of 41Page 21
any court at the commencement of the Kerala
land Reforms Amendment Act, 1969.
(2) No order of the Land Tribunal or the
appellate authority or the Land Board or the
Taluk Land Board or the Government or an
officer of the Government made under this Act
shall be questioned in any civil court, except as
provided in this Act.
(3) If in any suit or other proceedings any
question regarding rights of a tenant or of a
Kudikidappukaran (including a question as to
whether a person is a tenant or a
Kudikidappukaran) arises, the civil court shall
stay the suit or other proceeding and refer such
question to the Land Tribunal having jurisdiction
over the area in which the land or part thereof is
situate together with the relevant records for
the decision of that question only.
(4) The Land Tribunal shall decide the question
referred to it under subsection (3) and return
the records together with its decision to the civil
court.
(5) The civil court shall then proceed to decide
the suit or other proceedings accepting the
decision of the Land Tribunal on the question
referred to it.
(6) The decision of the Land Tribunal on the
question referred to it shall, for the purposes of
appeal, be deemed to be part of the finding of
the civil court.
(7) No civil court shall have power to grant
injunction in any suit or other proceedings
Civil Appeal Nos.2735-2736 of 2005 21 of 41Page 22
referred to in sub-section (3) restraining any
person from entering into or occupying or
cultivating any land or Kudikidappu or to appoint
a receiver for any property in respect of which a
question referred to in that sub-section has
arisen, till such question is decided by the Land
Tribunal, and any such injunction granted or
appointment made before the commencement
of the Kerala Land Reforms (Amendment) Act,
1969, or before such question has arisen, shall
stand cancelled.]
[(8) In this section, "civil court" shall include a
Rent Control Court as defined in the Kerala
Buildings (Lease and Rent Control) Act, 1965.]”
11. When we refer to Section 2(25) which defines
Kudikidappukaran, the main ingredients to be noted are that
to fall within the said definition a person has to establish that
he had neither a homestead nor any land existing in extent
of 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 an owner or as a tenant at which he
could erect a homestead. Such person should have been
permitted with or without an obligation to pay rent. The
possession should be lawful possession of any land for the
purpose of erecting a homestead. Such a person in lawful
Civil Appeal Nos.2735-2736 of 2005 22 of 41Page 23
possession should have erected his own hut or homestead
which should have also been permitted by the owner of the
land with whatever easementary rights attached thereto.
Explanation II (a) and II (b) of Section 2(25) define what a hut
and homestead mean respectively. The Explanation IIA
prescribes a cut off date, namely, 16.8.1968 and those
persons who were in occupation of any land and dwelling
house thereon constructed on his own or by any of his
predecessors-in-interest or even belonging to any other
person, as deemed Kudikidappukaran, subject to certain
exceptions. Explanation VII of Section 2(25) totally prohibits
anyone to claim status as Kudikidappukaran even if such a
person is occupying a homestead or hut situate in a land
which is held or owned by the Government of Kerala or the
Government of any other State in India or the Government of
India itself.
12. Keeping the above relevant part of definition of
Kudikidappukaran under Section 2(25) of the Act, when we
examine Section 79A which starts with a non-obstante clause
and provides that notwithstanding anything contained in any
Civil Appeal Nos.2735-2736 of 2005 23 of 41Page 24
law or contract or judgment or decree or order of the Court,
the person falling within description of Kudikidappukaran
would be entitled to all rights accrued to him by custom,
usage or agreement which he was enjoying immediately
before the commencement of the Act, namely, 1.4.1964 by
which Sections 2 to 71, 73 to 82, 84, 99 to 108 and 110 to
132 were brought into force after receiving the assent of the
President on 31.12.1963 which was published in Kerala
Government Gazette Extraordinary No.7 dated 14.1.1964. In
order to avail the benefits which are provided under Section
79A, the Act prescribes the mode by which the status of a
person who claims himself to be a Kudikidappukaran to be
entered as such in a register prescribed under the Act. The
procedure for getting such a registration has been set out in
Section 80 of the Act. While under sub-Section (1) of Section
80 the Government has been ordained to prepare and
maintain a register by the local authority wherever such land
situate, under sub-Section (2) of Section 80 the details as
regards the description of the land, the location, the name of
land owner and the person in possession, the name and
Civil Appeal Nos.2735-2736 of 2005 24 of 41Page 25
address of Kudikidappukaran, the nature of rights available
to such Kudikidappukaran as prescribed under Section 79A
and such other relevant particulars are to be noted in the
said register as prescribed under Section 80 (2) of the Act.
Sub-Section (3) and (4) of Section 80 enjoin upon the local
authority to prepare a register of Kudikidappukars within its
jurisdiction and continue to maintain in the manner
prescribed therein. Sub-section (5) of Section 80 is more
relevant for our purpose which specifically states that in the
event of the local authority refusing to register a person
claiming to be a Kudikidappukaran as prescribed under subSection (3) of Section 80, such a person would be entitled to
file an appeal within 90 days from the date of such refusal, to
the Revenue Divisional Officer having jurisdiction where the
decision is that of an authority of Municipal Corporation or a
Municipal Council or to the Tahsildar in all other cases. The
appellate authority has been empowered under sub-Section
(6) of Section 80 to call for the record of any proceeding
where a decision has been taken by the local authority and
after holding such enquiry pass orders in the appeal. The
Civil Appeal Nos.2735-2736 of 2005 25 of 41Page 26
proviso to sub-Section (6) of Section 80 specifically provides
for an opportunity of personal hearing to the concerned
appellant(s). Thereafter in the event of the registration of a
person’s claim having fructified in the prescribed register as
a Kudikidappukaran, such person would gain a right to seek
for purchase of Kudikidappu rights under Section 80A of the
Act. An application has to be preferred by a registered
Kudikidappukaran which is to be decided by the land Tribunal
after giving an opportunity of hearing to a person interested
in the land and after holding an enquiry. Under sub-Section
(4) of Section 80B, the details to be specified in any order to
be passed under sub-Section (3) of Section 80B has been
prescribed.
13. Anyone aggrieved by the order passed under Section
80B has got a right of appeal under Section 102 of the Act
within the prescribed time limit. Against any such order in
appeal a further right of revision is provided under Section
103(1) (i) to the High Court wherever the decision of land
Tribunal is erroneous or which failed to decide any question
of law.
Civil Appeal Nos.2735-2736 of 2005 26 of 41Page 27
14. Section 125 stands apart from the above provisions
which creates a bar of jurisdiction of Civil Court to settle,
decide or deal with any question or to determine any matter
which is by or under the 1963 Act required to be settled,
decided or dealt with or to be determined by the Land
Tribunal or the Appellate Authority or the Land Board or the
Taluk Land Board or the Government or an officer of the
Government. Further the proviso to Section (1) to Section
125 excludes such a bar of civil Court jurisdiction in respect
of proceedings pending in any Court at the commencement
of the Kerala Land Reforms Amendment Act, 1969. Even
while creating such a bar of jurisdiction of civil Courts, the
law makers wanted to ensure that no person is allowed to
abuse or misuse the benefits conferred under 1963 Act while
claiming rights as a Kudikidappukaran and with that laudable
object engraved sub-Section (3) in Section 125 itself by
which any Civil Court or authority before whom any other
proceedings regarding rights of a tenant or of a
Kudikidappukaran arise for consideration, enjoins upon such
civil Court or other authority to stay the proceedings
Civil Appeal Nos.2735-2736 of 2005 27 of 41Page 28
temporarily and also simultaneously make a reference to the
Land Tribunal having jurisdiction over the area in which the
land or part thereof is situate along with the relevant records
for the decision of the question as to whether a person is a
tenant or a Kudikidappukaran. Sub-Section (8) of Section
125 which was introduced in the statute book w.e.f.
2.11.1972 made it clear that civil Court would include a Rent
Control Court as defined in the 1965 Act. Sub –section (4)
enjoins upon the Land Tribunal to decide the question
referred to it under sub-Section (3) and return the records
together with his decision back to the Civil Court/Rent
Control Court. Under sub-Section(5) of Section 125 the civil
Court/Rent Control Court should then proceed to decide the
suit or other proceedings by accepting the decision of the
Land Tribunal on the question referred to it. Sub-Section (6)
of Section 125 makes the position clear that while the
decision of the Land Tribunal on the question referred to it
should be accepted by the concerned Civil Court/Rent
Control Court which refers the question, the further
determination as to the correctness or otherwise of such
Civil Appeal Nos.2735-2736 of 2005 28 of 41Page 29
decision by the Land Tribunal can be examined in the
channel of appeal provided in the respective jurisdictional
Appellate Court of the Civil Court/Rent Control Court. In other
words, while under Section 125(3), having regard to the bar
of jurisdiction of Civil Court/Rent Control Court to decide the
question about the status of a Kudikidappukaran or a tenant
which can be exclusively decided only by the land Tribunal,
after such a decision is rendered pursuant to a reference
made to it and the ultimate decision of the Civil Court/Rent
Control Court is taken up by way of an appeal to the
Appellate Court/appellate authority of a Civil Court or Rent
Control Court while examining the merits of the decision of
the concerned Civil Court or the original authority on the
question of eviction can also examine the correctness of the
decision rendered by the Land Tribunal as regards the status
as a Kudikidappukaran.
15. Having analysed the scheme of the 1963 Act based on
the above provisions, we are able to discern the scheme of
the Act vis-à-vis the civil court jurisdiction including the Rent
Control Court and the Rent Control Appellate Authority under
Civil Appeal Nos.2735-2736 of 2005 29 of 41Page 30
the provisions of the 1965 Act. Keeping the above scheme of
the Act, in relation to the issue which has come up for
consideration in these appeals, in our mind, when we
examine the controversies raised in these appeals as noted
by us earlier, when the respondent herein filed application
for eviction before the Rent Control Court in RCP
No.140/1985, since on behalf of the appellant(s), an
objection was raised to the effect that the building was a hut
and that the respondent in the RCP claimed himself to be a
Kudikidappukaran entitled to get Kudikidappu right over the
scheduled building and property, the Rent Control Court
rightly referred the said issue, namely, whether the
appellants’ predecessor in interest was entitled to claim the
status of Kudikidappukaran or merely a tenant to be decided
by the Land Tribunal by way of Reference in RC No.16/89. As
far as the eviction sought for by the respondent was on the
ground of default in payment of rent, demolition and
reconstruction, as well as for bonafide need for own
occupation, the Rent Control Authority after making an initial
reference in RC No.16/89 to the Land Tribunal and after
Civil Appeal Nos.2735-2736 of 2005 30 of 41Page 31
receipt of the decision of the land Tribunal in its order dated
19.2.1991 in RC No.16/89 held that the predecessor-ininterest of the appellant(s) was not a Kudikidappukaran over
the petition scheduled building, accepted the said decision
and thereafter proceeded to decide whether the ground of
eviction as sought for by the respondent landlord was made
out. By its order dated 02.7.1991 in RCP 140/85, the Rent
Control Authority concluded that there was a landlord-tenant
relationship between the respondent and the appellant(s),
and that there was a sub-lease of the tenanted building, that
there was bonafide need for demolition and re-construction
as well as for own-occupation and consequently directed
eviction of the appellant(s) to enable the respondent to go in
for re-construction and occupation of the same on their own.
16. On behalf of the appellant(s), an appeal was preferred
as against the decision of the Rent Control Authority dated
02.7.1991 by way of an appeal before the Rent Control
Appellate Authority in RCA No.133/91. Before the Appellate
Authority also, the question as to the decision of the Land
Tribunal, namely, whether the appellant(s) were entitled for
Civil Appeal Nos.2735-2736 of 2005 31 of 41Page 32
status of Kudikidappukaran as well as the grounds of eviction
were subject matter of consideration. The Appellate Authority
under the Rent Control Act ultimately by its order dated
28.10.95 confirmed the order of the learned Rent Controller
by dismissing the appeal preferred by the appellant(s). Be
that as it may, as pointed out earlier on behalf of the
appellant(s), an application was independently filed in OA
78/88 by invoking Section 80B of the 1963 Act before the
Land Tribunal apparently, on the assumption that the
appellants’ status as a Kudikidappukaran existed. The said
application was decided by the learned Tribunal in a detailed
order passed on 19.2.1991 which incidentally was the date
on which RC No.16/89 was also decided by the Land Tribunal
which decision was forwarded to the Rent Control Court for
passing further orders in the eviction proceedings.
17. It is relevant to note that the application preferred on
behalf of the appellant(s) under Section 80B of the 1963 Act
in OA 78/88 was rejected by the Land Tribunal,
Thiruvananthapuram and some of the relevant findings were
as under:-
Civil Appeal Nos.2735-2736 of 2005 32 of 41Page 33
“Ext.A1 (Property tax assessment) when
examined it is found that Appukuttan Nair, the
applicant is an occupant in a building TC
No.6/482 and the owner of the building is B.
Chembakakutty Amma. The revised annual tax
of the said building is arrived at Rs.22.68 by
calculating the annual rent of the building as
Rs.168/- i.e. monthly rent for the year 1965-66 is
Rs.14/-. A building for which a monthly rent of
Rs.14/- is assessed by the assessing authority in
the year 1965-66 will not in any account be a
hut or a kudil. It must be a full fledged house. It
is not prudent to believe that it is a hut. This
building assessment leads to believe that the
contention of the respondents are true and
correct. The wife and witness of the applicant in
the cross examination has stated that
Kamalamma is in possession of a separate
ration card and also she has admitted that the
land lord has filed BRC for eviction of the
tenants from the schedule building. The
Revenue Inspector has also stated that
Kamalamma who is the sister of the applicant
also possess separate ration card in the address
of the same building which shows that there are
at least two sets of occupants in one building.
Therefore it is reasonable to believe that the
applicant is occupied only a portion of a big
building occupation in a part of a building
cannot be construed as Kudikidappu as decided
in cases reported in 1968 KLT 888 and 1974 KLT
738. Another point to be noted is the tax
assessment of the building which brought out in
Ext.A1. According to this the monthly rent of the
building is reckoned as Rs.14/-. This also is
enough to believe that the schedule building is
not a kudil. There is nothing in evidence to show
that the applicant satisfy the requirements
under explanation II of Section 2(25) of the
Civil Appeal Nos.2735-2736 of 2005 33 of 41Page 34
K.L.R. Act. Moreover it has been proved that the
applicant is residing in a part of the building
wherein some other occupants are also residing.
On the above ground I enter into finding that the
applicant is not entitled to the fixity of
Kudikidappu in the property comprising in
Sy.No.1536A of Vanchiyoor village. In the result
in exercise of powers conferred upon me under
section 80B(3) I do hereby dismiss the original
application.”
18. On behalf of the appellant(s), a separate appeal was
preferred before the Appellate Authority (LR) in AA 37/91 as
against the decision dated 19.2.1991 in OA 78/88. The said
Appellate Authority concluded as under in paras 9 and 15.
“9) The Revenue Inspector filed his report.
He has reported that it is a thatched hut. The
cost at the time of construction of the hut would
be Rs.400/-. The rent which would have fetched
is Rs.4/- per month. The respondents have no
case that it is a full fledged house. They have
not taken any step for the examination of the
Revenue Inspector. No commission was taken
out to disprove the report filed by the Revenue
Inspector. No oral evidence was adduced by the
respondents. Ext.A1 is the copy of the extract of
the assessment register in respect of the said
hut for the period 1965-66. The rental value
which was existing at the time of assessment
was Rs.60/-. The monthly rent would have been
Rs.5/- which is within the ambit of the KLR Act.
In the absence of any evidence from the side of
the respondents, I can only accept the reports
Civil Appeal Nos.2735-2736 of 2005 34 of 41Page 35
filed by the Revenue Inspector and accordingly
hold that it is a hut and not a full fledged house.
15) From the forgoing discussion I can only hold
that the dwelling house is a hut and not a full
fledged house. The findings of the LT that it is a
full fledged house and the Kudikidappu is
claimed over a part of the building is erroneous
and unsustainable. The appellant is entitled to
fixity of Kudikidappu. The appeal is liable to be
allowed.”
19. After so holding, the Appellate Authority (LR) set aside
the order dated 19.2.1991 passed in OA 78/88 by the Land
Tribunal in the Section 80B application. It is relevant to point
out the serious discrepancy which were explicit in the order
of the Appellate Authority dated 13.11.1995 in AA 37/91. In
the first place, as rightly held by the Division Bench of the
High Court when a Reference was made under Section 125
(3) of the 1963 Act by the Rent Control Authority calling for a
decision as to the status of the appellant(s) as a tenant or
Kudikidappukaran for the purpose of deciding the eviction
proceedings, and in that Reference the Land Tribunal
returned a finding that the appellant(s) was not a
Kudikidappukaran but was only a tenant occupying a building
belonging to the respondent and not a hut or homestead,
Civil Appeal Nos.2735-2736 of 2005 35 of 41Page 36
thereafter the only scope to challenge the said conclusion of
the Land Tribunal was only by way of an appeal under the
provisions of 1965 Act by virtue of the specific stipulations
contained in Section 125(6) of the 1963 Act. When we
consider the scope and content of Section 125 on the whole,
we are convinced that the conclusion arrived at by the
Division Bench could have been the only conclusion and we
do not find any good grounds to differ from the same.
20. Consequently, when a decision was reached by the
Land Tribunal in a Reference made to it under Section 125
(3) of the 1963 Act, having regard to the scheme of the Act
as from the definition of Kudikidappukaran under Section
2(25), the benefits that would accrue to a Kudikidappukaran
as provided under Section 79A, the procedure prescribed
under Section 80 by which a person claiming the rights of
Kudikidappukaran has to ensure the recognition of such
status as Kudikidappukaran in a proceeding before the
concerned local authority and get his name registered in the
prescribed register to be prepared by the local authority and
to be maintained for that purpose, we fail to see how any
Civil Appeal Nos.2735-2736 of 2005 36 of 41Page 37
person claiming such status as Kudikidappukaran can seek
for such status to be recognized by resorting to any other
proceedings under the other provisions of the 1963 Act. To
put it differently, it has to be held that in order for a person
to claim the status of Kudikidappukaran for the purpose of
availing the benefits available as a Kudikidappukaran as
spelt out under Section 79A of the 1963 Act, he has to ensure
that the status claimed by him as Kudikidappukaran is in the
first instance accepted by the local authority in appropriate
proceedings under Section 80 of the Act and more
importantly in proof for such acceptance his name is entered
as Kudikidappukaran in the register prepared and
maintained for that purpose by the local authority. If any
such person is not able to get such recognition in the first
instance before the local authority, the statute prescribes a
remedy of appeal under Section 80(5) before appropriate
appellate authority. Only after establishing such a right in
the prescribed manner as provided under Section 80 of the
Act, there would be any scope for anyone to claim validly
that he is entitled for all the benefits that would flow from his
Civil Appeal Nos.2735-2736 of 2005 37 of 41Page 38
status as a Kudikidappukaran. In other words, it can be
validly stated that the claim of a status of a
Kudikidappukaran can be determined only under Section 80
of the Act.
21. In contradistinction to Section 80, what is provided
under Sections 80A or 80B were the consequential benefits
such as the right to purchase the Kudikidappu and the
procedure to be followed for effecting the purchase by
approaching the concerned authorities and thereby ascertain
his ownership rights after such purpose. By no stretch of
imagination, the right to purchase provided under Section
80A and the procedure prescribed for purchase of such right
under Section 80B can be invoked, by a person whose status
as Kudikidappukaran was yet to be ascertained earlier. The
approach made by the appellant(s) by invoking Section 80B
of the Act in order to assert his right as Kudikidappukaran
even without getting his status ascertained in the
appropriate proceedings under Section 80 of the Act was
wholly invalid and was rightly rejected by the original
authority in its order dated 19.2.1991 in OA 78/88.
Civil Appeal Nos.2735-2736 of 2005 38 of 41Page 39
Unfortunately, the Appellate Authority that decided the
appeal as against the said order in AA 37/91 failed to
understand the scope, power and jurisdiction of Appellate
power under Section 102 of the Act as against the order
passed under Section 80B of the 1963 Act which
unfortunately resulted in the passing of the order dated
13.11.1995 in AA 37/91.
22. It has to be stated in uncontroverted terms that the said
order of the Appellate Authority (LR) Attingal, dated
13.11.1995 in AA 37/91 was, therefore, wholly without any
jurisdiction and was not in tune with the powers vested with
the said Appellate Authority under Section 102 of the 1963
Act while examining the order passed under Section 80B of
the Act. It has to be stated that the said order was far in
excess of the jurisdiction vested in the said authority and,
therefore, the said order was rightly set aside by the Division
Bench of the High Court.
23. Once, we steer clear of the correctness of the said order
dated 13.11.1995 in AA 37/91, the only other aspect to be
Civil Appeal Nos.2735-2736 of 2005 39 of
41Page 40
examined is the correctness of the order passed by the Rent
Control Authority in RCP No.140/85 dated 2.7.1991 on the
merits of ground of eviction, namely, the alleged default in
payment of rent, necessity for demolition and re-construction
and the claim for own-occupation.
In those aspects, as the
conclusion was arrived at by the Rent Control Court based on
a detailed consideration of the merits which are mainly
based on facts and in the absence of any legal error in the
said conclusion arrived at by the Rent Control Authority as
well as the Rent Control Appellate Authority in the decision
dated 28.10.1995 passed in RCA No.133/91, there is no
scope to find fault with the ultimate decision of the Division
Bench of the High Court in dismissing the revision preferred
by the appellant(s).
Having bestowed our detailed
consideration on the impugned judgment, we hold that the
decision of the Division Bench in allowing the revision
preferred by the respondent as against the order of the
appellate authority (LR) dated 13.11.1995 in AA 37/91 was
also justified. These appeals, therefore, fail and the same
are dismissed.
Civil Appeal Nos.2735-2736 of 2005 40 of 41Page 41
…….……….…………………………...J.
[Dr. B.S.
Chauhan]
……….…….………………………………J.
[Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
March 22, 2013
Civil Appeal Nos.2735-2736 of 2005 41 of 41
