Kunhambu and Others vs Hanumantha Shanbhogue and Others

K.A. Abdul Gafoor, J.—The defendant, who was defeated in a suit for recovery of possession of B schedule building, assailing the concurrent decree rendered against him. The plaintiffs are admittedly the owners of the building in their occupation. The building is situated in 9 cents of land. They claimed rights as cultivating tenants and filed application under Sec. 72-B of the Kerala Land Reforms Act. That was dismissed as seen from Ext.Al and Ext.Al had been confirmed by the appellate authority as seen from Ext.A2. Finally that was upheld in Ext.A3 by this court. The suit was filed after Ext.Al order. The suit was resisted contending that Ext.Al was being appealed against and the same was pending. It was also contended without prejudice to that, that the defendant is a kudikidappukaran in respect of the building mentioned in the plaint. He is entitled to purchase kudikidappu right in para.7 of the Written Statement.

The trial court found that there was no reason for reference of the issue to the Land Tribunal as enjoined in Sec. 125(3) of the Kerala Land Reforms Act as he had been defeated in an application for purchase of the landlord''s right under Sec. 72-B of the said Act. It was also found, based on the evidence as follows:

.... it stands proved that the suit house was constructed by the plaintiffs themselves by spending more than Rs. 4000/- at that time. It is also in evidence that that house is a tiled one having 3 rooms. The roof of that house is made up of good timber. The plaintiffs had used 1500 tiles and 1000 laterite stones for its construction, and even at the time of its construction in early 60s it was worth a minimum rental of Rs. 12/- per month.

The defendant attempted an appeal mainly on the ground that as there was a plea of kudikidappu, it ought to have been referred, notwithstanding the finding in Ext.Al regarding tenancy under Sec. 72 of the Act to the Land Tribunal. The lower appellate court dealt with that contention and held that,

having contended earlier that he is a cultivating tenant under Act 1 of 1964 and having failed in that attempt, he cannot now turn around and take a different legal status viz. kudikidappu right since the two being distinct and different having different characteristics.

Aggrieved by this judgment this Second Appeal is filed mainly raising a substantial question of law as to whether the finding rendered in Sec. 72-B application will disentitle the tenant to claim a lesser right under Sec. 80-B to claim kudikidappu in respect of the very same kudikidappu holding. The trend of the decisions as contained in Karthiayani Pilla v. Appi Pennu Mathu (1965 KLT 1212), Manni v. Moithu & Ors. (1973 KLT 20), Kunhi Moideen Haji v. Andi and another (1974 KLT 225) and S. Appukuttan Vs. Thundiyil Janaki Amma and Another, is to the effect that a cultivating tenant can claim kudikidappu as well. It had been held in Muhammed Kunhi v. Abdulkader Haji ( 1992 ILR 79) by this court that a tenant who failed in an application under Sec. 72-B can very well maintain an application under Sec. 80-B for purchase of kudikidappu. It is true that this court in Kamalakshi Amma v. Vijayan (1988 (2) KLT 498) which was confirmed by the Supreme Court in Vijayan v. Kunhulakshmi Amma (1994 (1) KLT 942) has held that after having agitated one right, in a reference before the Land Tribunal, the tenant cannot later put up another plea of tenancy under Sec. 106 of the Kerala Land Reforms Act. That was based on the principle of constructive res judicata that the tenant ought to have raised all the pleas of defence at onetime. The tenancy coming under-Sec. 72 and kudikidappu as defined in Sec. 2(25) which is in detail dealt with in Secs. 80 and 80-B are coming within Chapter II of the Kerala Land Reforms Act touching the use and occupation of the land with or without building. In such circumstances, it may be possible for a tenant who lost the application under Sec. 72-B to maintain another one under Sec. 80-B. The principle of constructive res judicata as enjoined in Explanation IV to Sec. 11 of the CPC cannot be raised to defeat that claim of the tenant because the respective applications are in the forms statutorily prescribed wherein one cannot raise different pleas available under different sections. The principle of constructive res judicata may perhaps occur when the tenant is defending an eviction suit. In such circumstances, whether he is having a right of a cultivating tenant, kudikidappu or a commercial tenant under Sec. 106 of the Act, all there have to be simultaneously or alternatively raised. But this is a case of an application for purchase of landlord''s right under Sec. 72-B, where he could not have raised his contention regarding purchase of kudikidappu, because in an application under Sec. 72-B there is no question of raising a right under Sec. 80B which is a lesser right. Moreover these two claims cannot be said to be inconsistent ones to each other, as compared to a claim under Sec. 106. In such circumstances, the appellant is right in contending the substantial question of law to canvass an answer in his favour. But, as is seen from the judgment of the trial court there is evidence with regard to cost of construction of the building and also the rent. Admittedly by the appellant-defendant, he is occupying only in a hut and not a homestead. In such circumstances, the cost of construction of the hut, when it had been originally constructed, should be less than Rs. 750/-, When one is claiming kudikidappu in a hut, it is incumbent on him to plead the availability of right of kudikidappu validly contending the necessary ingredients to constitute that right as contained in Explanation 2 of Sec. 2(25) of the Kerala Land Reforms Act. A mere evasive plea as extracted above from the written statement will not be sufficient. He did not contend in the written statement as to the cost of construction of the hut in his occupation or the rent it may fetch at the time of construction. On the other hand, the plaintiff-landlord had in his deposition as P. W. 1 stated about the cost of construction, the materials used for construction and the rent that it could have fetched at the time of construction. There is no contra evidence to the effect except an evasive cross examination. Therefore the evidence on record proves that the conditions in the said Explanation 2 is not attracted to the facts of the case and in such circumstances the plea of kudikidappu cannot be even prima facie maintained. Of course, when there is a plea of kudikidappu, arising in a suit, the mandate of Sec. 125(3) of the Kerala Land Reforms Act is that the issue shall be referred for consideration of the Land Tribunal. But such a plea shall not be meant for protracting any proceeding. There should have been atleast a probable chance of substantiating such a plea. The mere such plea which could not be substantiated and if there is no possibility of substantiating it at all the trial court is not liable to refer the issue to the Land Tribunal whenever such plea is raised. In this case, as mentioned above, there is unchallenged evidence regarding the cost of construction which is above Rs. 750/-. Naturally it takes the defendant from out of the purview of kudikidappukaran on the basis of Explanation 2 to Sec. 2(25) of the Act. So there was no reason at all for referring the issue to the Land Tribunal only to comply with Sec. 125(3) of the Act. The evidence aforesaid makes it clear that he is not a kudikidappukaran and by reason of that he cannot avert a proceeding for recovery of possession. Admittedly, he is not paying rent because according to, him he is not liable to pay it. So though on a different reason, the decree is sustained.

Appeal fails, Dismissed. No costs.