SUBHADRA AMMA Vs. GIRI MALLAN KRISHNA MALLAN
HIGH COURT OF KERALA
GIRI MALLAN KRISHNA MALLAN
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(1.) This second appeal is by the defendant in the suit being one for eviction from that portion of the plaintiffs property alleged to have been trespassed upon. The plaintiff contended that the defendant who had taken a portion of plaint schedule item 1 as per a coolicharth executed on 15.9.1121 had trespassed upon an adjacent portion and put up a cow shed. So he claimed eviction from the trespassed portion and allied reliefs. The defendant contended that she had taken as per an oral lease 13 cents of property from the plaintiffs predecessor in interest and not any plot as per a coolicharth as alleged by the plaintiff and hence denied any trespass. Both the lower courts have found that the claim regarding a lease is not true and that the defendants right was only as per a coolicharth filed as Ext. B. Holding under such circumstances that she was not entitled to erect a cow shed in a site outside what is covered by Ext. B the plaintiff was granted a decree.
(2.) On behalf of the appellant it is contended that the cow shed was erected long before Ext. A, the assignment in favour of the plaintiff, that it was necessary for the proper enjoyment of the homestead and that sufficient opportunity was not given to adduce evidence to prove the existence of the shed at the time of Ext. A. In view of the concurrent findings regarding genuineness of Ext. B the only question that has to be considered here is as to what rights followed from it. Ext. B creates only the right of a kudikidappukaran as defined in S.2(a) of the Cochin Verumpattomdars Act, VIII of 1118 in the defendant. The said definition is as follows:-
'Kudikidappukaran means a person who has been permitted to have the use and occupation of a portion of a property for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given.
Kudiyirippu defined in S.2(b) does not relate to that of the kudikidappukaran but only to that of the verumpattomdar. The definition of Verumpattomdar in S.2(d) excludes a kudikidappukaran. So the rights which a verumpattomdar can claim in view of the definition in S.2(b) of a kudiyirippu with regard to appurtenant buildings and such other lands as are necessary for the convenient enjoyment of the residential building cannot be claimed by kudikidappukaran. Though Cochin Verumpattomdars Act and Cochin Proclamation XVIII of 1122 staying suits against kudikidappukars did not define the kudiyirippu of a kudikidappukaran Travancore Act XXII of 1124 contained a definition. There S.2, Clause.(c) runs as follows:
'Kudikidappukaran means a person who has no homestead or land of his own to erect a homestead and has been permitted by an owner of land to have the use and occupation of a portion of the land for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given;
And kudiyirippu means the site so given together with the house, hut or shed thereon which is used as a place of residence by the kudikidappukaran with the permission of the owner.
As pointed out in Velayudhan v. Kandu ( 1952 KLT 630 ) in order that a person may be a kudikidappukaran under that sub clause one of the requisites is that the land in question must have been given for the purpose of erecting a homestead. The kudiyirippu of a kudikidappukaran under the Verumpattomdars Act is only of this limited kind and not of the comprehensive variety of a kudiyirippu of a verumpattomdar. When Travancore - Cochin Act, XIII of 1955, was enacted the defect in the Cochin Act and Proclamation was cured by incorporating the definition in the Travancore Act in S.2, Clause.(c). It is this Act that repealed Travancore Act XXII of 1124 and the Cochin Proclamation, XVIII of 1122. So it is clear that a kudikidappukaran as the defendant cannot claim any right to use any portion of the property adjacent to the site granted to her by way of accessory license or otherwise. So the lower courts were quite right in holding that the plaintiff is entitled to evict the defendant from the trespassed portion. There is no ground to think that sufficient opportunity was not given to adduce any relevant evidence. Padmanabha Shenoi v. Moideen ( 1955 KLT 390 ) cited on behalf of the appellant is not applicable to the present case as that deals with the rights of a lessee of a house.
(3.) In the result, the appeal is dismissed with costs.;
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