Full Judgment Text
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PETITIONER:
L.VASANT KUMARI
Vs.
RESPONDENT:
BALAMMAL
DATE OF JUDGMENT30/11/1994
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
VENKATACHALA N. (J)
CITATION:
1995 SCC (1) 635 JT 1995 (2) 83
1994 SCALE (5)323
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1.This appeal raises question of law of general importance.
Though the respondents were successful all through, they are
now losing the battle in this Court. The property initially
belonged to one Subramonian Pillai. By the sale deed dated
5-10-1955, Subramonian Pillai sold the property in question
to one Vaikuntam Pillai. By agreement dated 15-10-1956, the
respondent agreed to purchase the property from Vaikuntam
Pillai. Based on that agreement, he filed a suit for
specific performance which was decreed and ultimately
confirmed by the High Court on 18-11-1963. Thereafter, the
respondents filed OS No. 76 of 1967 on the file of Munsif’s
Court, Trivandrum for possession on the ground that the
appellant trespassed into the land and the hut on 4-11-1955,
and that, therefore, she is liable to be ejected. The suit
was decreed by the trial court. On appeal, it was reversed
and in Second Appeal No. 686 of 1978, by judgment dated 28-
11-1983, the High Court reversed the decree of the appellate
court and confirmed that of the trial court. Thus this
appeal.
2.The question is whether the appellant is deemed a
Kudikidappukaran within the meaning of Explanation 11-A of
Section 2(25) of Act 1 of 1964 as amended by Act 35 of 1969.
Section 2(25) defines Kudikidappukaran as :
"(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
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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."
637
Explanation II-A was introduced by Amendment Act of 1972
with retrospective effect. Explanation 11-A reads thus:
"Explanation II-A.- Notwithstanding any
judgment, 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."
The proviso was also added thereto-
"(a) in case 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."
3. Though Section 2(25) defines Kudikidappukaran, the
definition by operation of the Amendment Act and
introduction of Explanation 11-A has no materiality for the
purpose of this case. The Explanation 11-A is only
material. It contemplates in the main part of the
definition of Kudikidappukaran and notwithstanding any
judgment, decree or order of any court, a person, who on 16-
8-1968, 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 1- 1- 1970,
shall be deemed to be Kudikidappukaran. It would appear
that there was a chain of decisions of the Kerala High Court
interpreting in one way or the other of the definition of
Kudikidappukaran and to remove the doubts, thus cropped up
the need for legislature to step in and introduce
Explanation II-A, with retrospective effect. As to
operation of this Explanation, what is relevant to be
considered is that the person claiming to be deemed
Kudikidappukaran, he/she shall be in occupation of the land
and the dwelling house as on 16-8-1968, whether constructed
by himself or by herself or by any of his predecessors-in-
interest or it may belong to any other person. Another
condition to be fulfilled is that the person continues to
remain in possession till 1-1-1970. Under General Clauses
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Act, male includes female. On satisfying these requirements
the person in possession shall be deemed to be
Kudikidappukaran. In the plaint it was admitted that the
appellant trespassed in the building on 4-11-1955 and took
up residence therein. In view of that admission since she
came into the occupation of the building as on 5-11-1955
much before the specified date and remained to be in
possession even till date, the necessary conclusion would be
that she became the deemed Kudikidappukaran.
638
4. This Court, in S. Appukuttan v. Thundiyil Janaki Amma 1
interpreting Explanation 11-A introduced by 1972 Amendment
Act held that the restricted interpretation cannot be given
to the definition under Explanation II-A. The Explanation
equates an occupant of a homestead or a hut thereon during
the relevant period with a Kudikidappukaran as defined in
the main clause. Accordingly, anyone satisfying the
requirements of Explanation 11-A and its proviso would be
statutorily deemed as one permitted to occupy a homestead or
a hut thereon as envisaged in sub-clauses (a) and (b) of
Section 2(25) and would automatically be entitled to have
the status of Kudikidappukaran and to all the benefits
flowing therefrom.
5. In that view of the matter and in view of the admission
of the respondents in the plaint and the interpretation
given hereinbefore, it must be held that the appellant is a
deemed Kudikidappukaran within the meaning of Explanation
II-A to Section 2(25) of the Kerala Land Reforms Act. As
such the appellant is not liable to be ejected by the
decree. Thereby the suit is not sustainable and the decree
granted by the trial court and affirmed by the High Court is
clearly illegal. The appeal is accordingly allowed and the
suits stand dismissed. Parties to bear their own costs
throughout.
639