Decided on January 14,1974

ITOOP Appellant


- (1.) THE petitioner is the owner of the site of a kudikidappu wherein respondents Nos. 2 to 11 are at present residing. An application was filed by the petitioner before the Land Tribunal, Mathilakam under S. 15 (3) read with S. 77 of the Kerala Land Reforms Act, 1963 praying that the respondents should be directed to shift the kudikidappu from its existing site in the petition A schedule property to the alternative site described in B schedule to the petition, on the ground that the A schedule property was bona fide required by the petitioner for construction of a residential bouse for his son. THE Land Tribunal by its order Ext. P1 dated 14th September, 1972 dismissed the said application mainly on the ground that the alternative site offered by the petitioner is not within a distance of one mile from the A schedule property. One more reason has been stated by the Land Tribunal namely, that the petitioner has not expressed in the application filed by him his willingness to pay the price of the existing kudikidappu. THEre is serious doubt as to the tenability of the second ground mentioned by the Land Tribunal because the evidence adduced in the case would clearly indicate that the existing structure forming the kudikidappu of the respondents is one owned by the petitioner, In which case no question can arise of his having to pay the value thereof to the respondents as a condition precedent for their being asked to shift to the alternative site. But the first ground stated by the Land tribunal namely, that the B schedule property situated beyond the distance of one mile from the A schedule land is based on its appreciation of the evidence consisting of two commission reports filed before it, one by the Revenue inspector attached to the Tribunal and the other by an advocate commissioner deputed by the Tribunal to inspect the property.
(2.) ALTHOUGH there is some force in the argument advanced by the petitioner's counsel that on a careful reading of the report of the advocate commissioner it would appear that besides the public road there is also an alternative pathway along which an access can be had to the B schedule property and the distance between the two sites, if measured along the said pathway, may be only less than a mile, it is seen from the said report that what has been referred to by the advocate commissioner is not a continuous or well-marked pathway but only a line along which, according to him, a person can walk from the A schedule property to the B schedule land and reach the latter site after crossing three or four 'thodus' one of which is said to be 4 feet deep. I do not find It possible to hold that the Land Tribunal acted with any manifest illegality In ignoring the existence of any such method of approaching the B schedule property and In calculating the distance along the admitted public road. Counsel for the petitioner, however, advanced an argument that for the purpose of S. 75 one has to take into account not the actual distance to be traversed by a person when one walks from the existing site to the alternative site but the radial distance between the two sites which may be only very much less than the former. The argument of the learned counsel, in other words, Is that the distance should be calculated as the crow flies and not along any road or pathway that can be made use of for pedestrian or vehicular approach. The condition stipulated in S. 75 (2) (c) (ii) of the Act Is that the new site shall be within a distance of one mile from the existing kudikidappu. Giving those words the ordinary meaning, the distance has to be calculated along some road or pathway over which a person will have a right to approach the alternative site when proceeding thereto from the site of the existing kudikidappu. The finding entered by the Land Tribunal that the B schedule property is situated at a distance of more than one mile from the site of the existing kudikidappu does not call for any Interference by this court. It then follows that the Land Tribunal was fully justified in dismissing the petitioner's application for shifting the kudikidappu. The original petition therefore fails and is dismissed but in the circumstances the parties will bear their respective costs. Dismissed. . .;

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