RAGHAVAN NAICKEN Vs. AYYAPPANKUTTY
LAWS(KER)-1963-12-8
HIGH COURT OF KERALA
Decided on December 19,1963

RAGHAVAN NAICKEN Appellant
VERSUS
AYYAPPANKUTTY Respondents


Cited Judgements :-

BALAKRISHNAN VS. PARAMESWARAN NAMBOODIRI ALIAS P N KAKKAT [LAWS(KER)-1967-7-25] [REFERRED TO]
PANANGAT KUNHIPARAN VS. POZHANGAVIL THEKKEMADATHIL VENKITESWARA NAICKEN [LAWS(KER)-1967-3-28] [REFERRED]


JUDGEMENT

- (1.)The question for decision is whether a usufructuary mortgagee, who has put up a building in the mortgaged property and is residing there, is entitled to fixity of tenure under S.21 of the Malabar Tenancy Act. The learned Munsiff held that the plaintiff could redeem the mortgage but not recover possession as the mortgagee has to be deemed a tenant of a kudiyiruppu. On appeal, the Subordinate Judge held that the mortgagee was bound to surrender possession This court, in Second Appeal No. 308 of 1957, upheld the view of the Trial Court. This appeal has been preferred by the plaintiff from the decision in the Second Appeal.
(2.)The concurrent finding that the defendants are in possession under the usufructuary mortgage Ext. A 1 dated 23-10-1934 and not the earlier lease was not objected to by the respondents. So the only question is whether the defendants can claim fixity of tenure under S.21 of the Malabar Tenancy Act, which provides:
Notwithstanding any contract to the contrary, whether entered into before or after the commencement of this Act, every cultivating verumpattamdar, every customary verumpattamdar, every kanamdar, every kanam kuzhikanamdar, every kuzhikanamdar, every tenant of a kudiyiruppu and every holder of a protected ulkudi or a kudikidappu shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in this Act;

(the provisos are omitted as they are not relevant)

(3.)The decision under appeal is based on the finding that there is no distinction between the tenant of a kudiyiruppu and holder of a kudiyiruppu and this is based on the definitions of the words kudiyiruppu, tenant and holding. The definitions are extracted:
Kudiyiruppu' means and includes the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building, and the easements attached thereto but does not include an ulkudi or kudiyiruppu.

Tenant means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another, to enjoy the land of the latter, and includes an intermediary, a kanamdar, a kanam kuzhikanamdar, a kuzhikanamdar, a verumpattamdar of any description and the holder of a kudiyiruppu; but does not include a mulgenidar as defined in the Mulgeni Rent Enhancement Act, 1920, in the villages in the South Kanara District specified in the Schedule.

Holding means a parcel or parcels of land held under a single engagement by a tenant from a landlord and shall include, any portion of a holding as above defined, which the landlord and the tenant may agree to treat as a separate holding.

According to these definitions, the holder of a kudiyiruppu is a tenant. The mortgagees - respondents contend that these definitions read together lead to the conclusion that there is no difference between the tenant of a kudiyiruppu and the holder of a kudiyiruppu and the two are synonymous expressions - a view adopted by the learned Single Judge.

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