Meenakshi G. Nayak & Ors. vs Srimad Anantheshwara Temple

A short but vexatious question has arisen for consideration in this appeal. Can a tenant under a contract of tenancy claim rights of a kudikidappukaran on the strength of a contract of tenancy for 11 months entered in the year 1985. The claim rests on the strength of a Division Bench decision in Maniyan Vs Ramachandran [1999 (3) KLT 86].

Brief facts for disposal of the case are as follows:

The plaintiff temple had given the plaint schedule property on lease to the father of the 1^st defendant (original defendant in the suit) on 1.4.1963. It is stated that the lease was for agricultural purposes. Whether the lease got demised or not is not indicated from the pleadings. It appears that on 19.8.1985, the parties executed a fresh contract of tenancy for a period of 11 months. The rent fixed was Rs.165/-. Thereafter, the defendant continued in possession beyond the contractual lease period and thereby became a tenant holding over. The plaintiff had requested the defendants/appellants to vacate the premises on several occasions, which was not heeded to. Since the tenants refused to vacate the premises, the landlord issued a notice demanding them to vacate the premises and thereafter filed a suit for recovery of possession.

In the suit, the defendants raised multiple pleas, including the one touching upon the sustainability of the lease deed dated 19.8.1985, and went on to the extent of contending that the said lease is not valid inasmuch as it was executed with coercion and undue influence. Alternatively, a plea for protection of the kudikidappu rights of the defendants under the provisions of the Kerala Land Reforms Act, 1963, was also raised. This necessitated a reference under Section 125(3) of the Kerala Land Reforms Act before the jurisdictional Land Tribunal as R.C. No.2 of 2007. The Land Tribunal answered the reference, holding that the petitioner therein (original defendant) is not entitled to get the protection of a kudikidappukaran under the provisions of Section 2(25) of the Kerala Land Reforms Act, 1963. The answer was accepted by the trial court. Incidentally, a plea was raised by the defendants that the value of the house at the time of construction was estimated by the advocate commissioner at Rs.725/- and therefore they are entitled to get the protection under the Kerala Land Reforms Act, 1963. The trial court did not accept the report of the advocate commissioner fixing the value at Rs.725/-, but then proceeded to non-suit the appellants on other grounds also. Aggrieved, the appellants preferred A.S. No.8 of 2023 before the Sub Court, Kasaragod. One of the main grounds raised against the judgment of the trial court was that it could not have differed from the report of the Advocate Commissioner, who fixed the value at Rs.725/-, and that it further erred in taking into account the value of the construction made by the tenants while computing the value of the building as on 1.1.1970. However, the plea was not accepted, and the first appellate court also concurred with the findings of the trial court, rejected their contentions. Hence the present appeal.

Heard Sri. B. Krishnan, the learned counsel appearing for the appellants, and Sri. Kodoth Sreedharan, the learned counsel appearing for the respondent/plaintiff.

Since, at the request of learned counsel for the appellants, the substantial questions of law were reframed, this Court must decide two issues:

Before that, this Court must also address a pivotal issue regarding the entitlement of the appellants to get protection under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965.

Sri. Kodoth Sreedharan, the learned counsel appearing for the respondent, points out that by virtue of the notification, G.O. (MS) No.59/93/Hsg dated 19/11/1993, Srimad Anantheshwara Temple, is exempted by the Government from the purview of the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965. Therefore, the claim for protection under the Kerala Buildings (Lease and Rent Control) Act, 1965, fails.

What remains is the claim for protection of the kudikidappu rights under the provisions of the Kerala Land Reforms Act, 1963. It must be remembered that a claim for protection as building tenant and a claim for kudikidappu rights under the Kerala Land Reforms Act, 1963 is mutually destructive. But, Shri B. Krishnan, the learned counsel contends that a claim for kudikidappu can arise after 1-1-1970 and therefore, the appellants are entitled to raise this claim. Accordingly, this Court proceeds to examine the claim.

What is projected before this Court is that, though a contract of tenancy has come into force on 19.8.1985, still the appellants are entitled to the protection of their kudikidappu rights. In support of his contention, Sri. B Krishnan, the learned counsel appearing for the appellants extensively relied on the Division Bench decision of this Court in Maniyan v. Ramachandran [1999 (3) KLT 86] and also the view expressed by the learned Single Bench of this Court in Vidhyadharan v. Sivadas [2001 (2) KLT 605]. He further pointed out that merely because the tenant failed to get his rights registered under Section 80 of the Kerala Land Reforms Act, 1963, will not ipso facto denude the rights of the tenant. In support of his contention, the learned counsel relied on the decision of the Supreme Court in Madhavi Amma and Others v. S. Prasannakumari and Others [AIR 2013 SC 1384].

Before this Court proceeds to consider the contention, it must be noted that to sustain the claim for kudikidappu, the tenant must satisfy the conditions specified under Section 2(25) of the Kerala Land Reforms Act, 1963. Section 2(25) reads as under:

10 . Explanation II to Section 2(25) of the Kerala Land Reforms Act, 1963, postulates two situations:

The cost at the time of construction should not exceed Rs.750/-

That, at the time of construction, the building should not yield a monthly rent of exceeding Rs.5/-.

Pertinently, Section 74 of the Kerala Land Reforms Act, 1963, prohibits the creation of tenancy after the coming into force of the Act. Therefore, a larger question that may arise for consideration is that, in the case of a building tenant who enters into a contract of tenancy for eleven (11) months, can he still claim protection of a kudikidappukaran under Section 2(25) of the Kerala Land Reforms Act, 1963?

Before this Court answers the question, it must decide whether the Division Bench decision in Maniyan (Supra) is applicable to the facts of the case. A reading of the decision shows that the question which came up for consideration was whether a tenant who had kudikidappu rights which he lost before 1-1-1970 due to the operation of the statute could still claim such rights provided he satisfied the conditions prescribed under the Act. The reference was necessitated because a learned Single Judge in Mohammed v. Abdulla [1997 (1) KLT 410] held that a tenant cannot claim kudikidappu rights after 1-1-1970.

Answering the reference, the Division Bench held that in case where the kudikidappu rights were lost because of the fact that the land in possession of tenant exceeded the limits under Section 2(25) and once he assigns the excess land after 1-1-1970, still he can claim the benefit since the right to claim the benefit came into force by the amending Act 35 of 1969 w.e.f 1-1-1970. The reference was thus answered, and the revision petition was disposed of, directing the trial court to refer the claim to the Land Tribunal.

In this case, though, a fervent attempt is made by the defendants to trace their possession under the 1^st defendant, it is indisputable that in the year 1985, a contract of tenancy was entered into. It must be borne in mind that a right of kudikidappu will arise only if the occupant enters vide a gratuitous permission to a homeless person to occupy a hut/land. Such a right must have accrued prior to 1-1-1970. Post 1-1-1970, a claim for kudikidappu can arise only if other conditions are satisfied. But it is mandatory that the right must have been accrued to the tenant prior to 1-1-1970, since after 1-1-1970 no fresh tenancy can be created because of the bar under Section 74 of the Kerala Land Reforms Act, 1963.

The decision in Maniyan (Supra) cannot be construed as one conferring a right to a person to claim kudikidappu based on a contract of tenancy entered after the introduction of Section 74 of the Kerala Land Reforms Act, 1963. When there is a statutory bar against the creation of a tenancy, it is futile for the appellants to claim the rights conferred under the Kerala Land Reforms Act, 1963, based on a void tenancy. Still further, a claim for kudikidappu under the Kerala Land Reforms Act cannot arise based on a contract of tenancy executed after the coming into force of the Act. Such a question never arose before the Division Bench and hence the decision cannot be the authority for the proposition canvassed in this case.

It must be remembered that the appellants do not dispute the creation of a fresh tenancy in the year 1985, which was for 11 months. A 11-month contract of tenancy agreement executed in 1985 is a commercial leasehold agreement, creating a legal landlord-tenant estate. The impact of the agreement can be twofold: i) if it is interpreted as creating rights on the tenant, then it is hit by Section 74 of the Kerala Land Reforms Act; and ii) if it is interpreted as a commercial building lease, it falls within the ambit of rent control laws.

Since the appellants claim under the tenancy agreement executed in the year, 1985, they must be pinned down to the terms of the contract and cannot claim a right under the Kerala Land Reforms Act, 1963, since the creation of fresh tenancy is prohibited under law. The prohibition under the Kerala Land Reforms Act, 1963, is an indication that in order to claim the protection of kudikidappu rights, the same must have arisen based on an arrangement prior to 1-1-1970 and not otherwise.

That apart, one cannot dispute the fact that the purpose of the Kerala Land Reforms Act, 1963 was to bring about larger agrarian reforms. To hold that, even in a case of a contract of tenancy, the contractual tenant would get the benefit of the Kerala Land Reforms Act, 1963, would completely obliterate the purpose of the enactment, and also the contract entered into between the parties concerned.

Still further, the plea now raised will lead to an incongruous situation where after entering into a contract of tenancy and also getting an exemption under the provisions of the Kerala Building (Lease and Rent Control) Act, 1965, the landlord, namely the temple in question, would face a situation where it would have yield its higher proprietary rights over the property to a tenant who has been put in possession in pursuance to a contract and that the tenant would get his rights elevated to that of a kudikidappukaran thereby completely denuding the landlord his proprietary rights over the property. Whether the provisions of the Kerala Land Reforms Act, 1963, envisage such a situation? The answer to this question must be in negative.

Though, the learned counsel for the appellants extensively relied on the decision of the Division Bench in Maniyan (Supra), this Court is of the considered view that the Division Bench never dealt with the question whether a person who comes into possession of a building pursuant to a contract of tenancy, could claim kudikidappu rights. Therefore, this Court is persuaded to hold that when a tenant came into possession of the building in question for a particular period of eleven (11) months and then continued to overstay in the building and refused to vacate the building even on repeated requests of the landlord, cannot turn around and contend that he is entitled for protection of his rights as a kudikidappukaran under Section 2(25) of the Kerala Land Reforms Act, 1963.

That apart, even for a moment, this Court assumes that the appellants can be permitted to raise a claim for protection of kudikidappu rights under the Kerala Land Reforms Act, the said right is qualified by two conditions as provided under Explanation (II) :

In the present case, admittedly, the value of rent is fixed at Rs.165/-. Therefore, what remains to be seen is whether the appellants are able to substantiate that at the time of construction, the value of the building was less than Rs.750/-.

Though, Sri. B Krishnan, the learned counsel for the appellants, extensively took this Court to the report of the advocate commissioner, and contended that the value of the building was noted as Rs.725/-, this Court is not persuaded to accept it. But then, the said report did not find favour with the trial court. The trial court had its own reasons to disbelieve the report of the advocate commissioner based on the evidence adduced by the landlord, including the cost of construction prevailing during the period in which the building was constructed. When the above finding is rendered on the basis of appreciation of evidence, which does not appear to be perverse to this Court. Thus, the plea of the appellants that the value of construction of the building is less than Rs.750/- is not supported by any cogent evidence. That be so, it is inevitable for this Court to hold that the courts below have rightly declined the plea of the appellants for protection of the kudikidappu rights under Section 2(25) of the Kerala Land Reforms Act, 1963. On that count also, the appeal must fail.

Resultantly, the substantial questions of law are answered as follows.

ii) Since the appellants came into possession as tenants pursuant to a contract of tenancy in the year 1985, they are not entitled to claim kudikidappu rights under Kerala Land Reforms Act, 1963.

Accordingly, the appeal fails, and the same is dismissed. No order as to costs. Ordered accordingly.