Xavier vs Lucy V. Pappali

K.A. Abdul Gafoor

A defeated defendant is the appellant herein. The plaintiff filed a suit for injunction. A schedule properties according to the defendant is the area where his kudikidappu situated with appurtenant structures, B schedule is the area wherein the house and house-site including the bathroom etc. situate. B schedule forms part of A schedule. C schedule is the balance area out of A schedule which according to the defendant he was using as necessary site for kudikidappu. The defendant therefore contended that he has got a statutory right in terms of Section 79 A (1) of the Kerala Land Reforms Act, 1963 to continue the right he had been enjoying as a kudikidappukaran. Section 79 A (1) reads as follows: 79A. Customary and other rights of kudikidappukaran--(1) Notwithstanding anything contained in any law, or in any judgment, decree or order of court, the kudikidappukaran shall be entitled to all rights accrued to him by custom, usage or agreement and which he was enjoying immediately before the commencement of the Act.

The suit was decreed earlier. In appeal that decree was reversed by the lower appellate court and the matter was remanded to the trial court as the issue regarding kudikidappu had not been referred to the Land Tribunal. Subsequent to the remand, the issue was referred to the Land Tribunal. Land Tribunal found him to be a kudikidappukaran, Land Tribunal further found that though he can purchase only 3 cents in terms of Section 80A of the Act, as the structure extended for about 3.128 cents, he is entitled to purchase that much extent. On its basis the trial court decreed the suit. The defendant went in appeal. The decree was confirmed. Therefore this Second appeal.

The substantial question of law raised in the appeal is centered around Section 79A(1) as extracted above and as to whether the courts below were justified in granting an injunction as prayed for by the plaintiff disentitling her the benefit in terms of the said section. It is also contended that if the structures were in existence prior to 1-1-1970, can the rights available in terms of section 79A(1) be denied?

The specific pleadings in this case by the defendant-appellant was that he undertook construction in plaint C schedule property in the year 1970. Section 79A was introduced as per the Amending Act 35/1969 which came into force on 1-1-1970. Therefore, going by the Written Statement of the appellant, as on 1-1-1970, there was no such construction. But it is contended on his behalf that as per the evidence tendered in this case, he had been using C schedule property from time immemorial and the construction that had been mentioned in the Written Statement was the reconstruction or repair and not the initial construction. Therefore, the trial court ought to have found that he was entitled to the benefit of Section 79A, disentitling the plaintiff the injunction granted. But, the specific question of law raised by the appellant as question No.3 in the appeal is as follows:

Whether in the given case were the structure which were in existence and in usage prior to 1-1-1970 is reconstructed by the kudikidappukaran, the usage of the reconstructed structure can be denied to the kudikidappukaran u/s 79A of the Kerala Land Reforms Act?

He did not mentioned the date 1-1-1964 when the Act came into force which is the relevant date with reference to the benefit available u/s 79A. As already mentioned above, the pleading was that the constructions were made in 1970. But in evidence he retracted from it and contended that he had made the construction even prior to that. He did not mentioned the date. But, when the substantial question of law is framed in this appeal, the construction is styled as one made "prior to 1-1-1970". He has no case, he was enjoying that "immediately before the commencement of this Act" as made mentioned of in the said section which means 1-4-1964. That necessarily answers the question of law arised by the appellant against him, and the appeal is dismissed. Anyhow, there will be no order as to costs.