Decided on July 11,1974

POULOSE Appellant


- (1.) The petitioner was the 2nd respondent in O. A. No. 571 of 1971 before the Land Tribunal, Alangad, and the 2nd respondent was the petitioner therein. O. A. No. 571 of 1971 was as application under S.77 of the Kerala Land Reforms Act, Act I of 1964, for shifting the kudikidappukaran, the respondents therein. The homestead is situated in the middle of the property causing inconvenience. A notice was sent calling upon the respondents therein to shift their kudikidappu. Since they did not shift, as required, the application was filed. The 2nd respondent, the petitioner herein, alone contested the application. According to him, he is cultivating a property 60 cents of land adjoining the property where he is residing. His father was in possession of some property which was surrendered by him. The building and the land were not surrendered. He contended that the property is not a kudikidappu but kudiyiruppu and therefore the application under S.77 is not maintainable.
(2.) The Land Tribunal found that be was a kudikidappukaran and that the shifting was proper. This petition is filed to quash Ext. P3 order of the Land Tribunal.
(3.) The question that has to be decided is, whether an application for shifting the kudikidappu can be filed when the tenant disputes the fact that the property is a kudikidappu. When a notice was issued to him under S.75(4), he had disputed the fact that the property is a kudikidappu. In spite of that, the application under S.77 was filed. Can the landlord file such a petition According to me, no. The statute confers some special rights on persons who come within the definition of the kudikidappukaran. It is for him to claim such benefits under the Act. No landlord can impose on an unwilling tenant, the benefits under the Act. Here, the landlord wants to get rid of the petitioner whose building is in the middle of the property. This attempt is being resisted by the petitioner. When the petitioner disowns his status as a kudikidappukaran, he is either a tenant under the Transfer of property Act or a tenant within the other clauses of Act I of 1964. If the landlord wants to get an adjudication of the status of the petitioner, he has to move the civil Court and get a decision. He cannot resort to S.77 of the Act and get the status of an unwilling kudikidappukaran decided. The petitioner claims that he is the holder of a kudiyiruppu vide: S.2(57)(b). 'Kudiyiruppu' is defined in S.2(26) as meaning a holding consisting of the site of any residential building and the site or sites of other buildings appurtenant thereto.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.