Holding

A Kudikidappukaran is entitled to purchase up to ten cents of land in a Panchayat area irrespective of the limited possession of the mortgagee, provided the landowner has at least ten cents of adjoining land.

Summary

The appellant, a Kudikidappukaran, occupied a hut (Kudikidappu) on land belonging to the first respondent. He was permitted to occupy the hut by a mortgagee who held a mortgage over only two cents of the land. The appellant applied to purchase ten cents of land adjoining his Kudikidappu, as provided by Section 80A(3) of the Kerala Land Reforms Act. The Land Tribunal and Appellate Authority allowed the purchase of ten cents, but the Kerala High Court reduced the entitlement to two cents, reasoning that the permission was granted by a mortgagee possessing only two cents. The Supreme Court held that the right to purchase is governed by the statutory limit of ten cents in a Panchayat area and is not confined to the extent of land held by the person who gave permission, provided the landowner has at least ten cents of adjoining land. Consequently, the appeal was allowed and the High Court judgment set aside.

Issues considered

Whether a Kudikidappukaran's right to purchase land under Section 80A(3) of the Kerala Land Reforms Act is limited to the extent of land possessed by the person who granted permission (mortgagee).
Whether the proviso to Section 80A(3) reduces the entitlement when the land available for purchase is less than the statutory extent.
Whether the date of occupation of the Kudikidappu affects the entitlement to purchase ten cents of land.

Legislation cited

Kerala Land Reforms Act, 1963s. 2(25), s. 80A(1), s. 80A(3)

Subjects

KudikidappukaranKerala Land Reforms ActSection 80Aland purchase rightmortgageePanchayat areaproperty rights

Judgment

KUNJANVASU A
v.
MADHAVAN ACHARI AND ORS.

DECEMBER 4, 2001

[K.T. THOMAS AND S.N. PHUKAN, JJ.] B

Kera/a Land Reforms Act, J963-Sections 2(25) and 80A(3).

Kudikidappu rights-Land situated in Panchayat area-Permission to
occupy the 'Kudikidappu' by the mortgagee having possession of 2 cents of the
land-Kudikidappukaran 's application to purchase J0 cents of land-Tribunal c
and Appellate Court held that he was to purchase JO cents-High Court upheld
the entitlement to the extent of 2 cents only since mortgagee permitted only to
that extent-Held, Kudikidappukaran was entitled to purchase JO cents of land
since the landlord possessed more than JO cents.
D
Appellant was a Kudikidappukaran of a land situated in panchayat
area. His Kudikidappu was in the land of respondent No. 1-land owner, the
exte.nt of which was 60 cents. Appellant had been permitted to occupy the
Kudikidappu by a mortgagee in possession who had taken mortgage of 2
cents of land of the first respondent-lancilowner. Appellant applied for
purchasing IO cents of land adjoining his Kudikidappu.
E

Land Tribunal and the Appellate Authority held that appellant was
entitled to purchase 10 cents of land. On appeal High Court held that he
was entitled to purchase only 2 cents of land out of the 60 cents belonging
to the first respondent because permission was granted by the mortgagee F
who had taken a mortgage of only 2 cents. Hence the appeal.

Allowing the appeal, the Court

HELD 1. The extent of the land purchasable by the Kudikidappukaran
has been fixed as ten cents if the land is in a Panchayat. It is so provided in G
sub-section (3) of section SOA of the Kerala Land Reforms Act, and the
only condition on which the said extent can be reduced is envisaged in the
proviso to the sub-section which shows that the extent would get reduced
only if the land available for purchase is less than the extent specified in the
sub-section. In such a situation the Kudikidappukaran will be entitled to H
417
418 SUPREME COURT REPORTS [2:001] SUPP. 5 S.C.R.
A purchase only the land available for purchase. Land available for purchase
means the adjoining land available with the landlowner for being pur-
chased by the Kudikidappukaran. [420-H; 421-A; BJ

2. Division Bench of the High Court has committed an error of law in
holding that a Kudikidappukaran is entitled to purchase only so much of
B
land which was in possession of the person who granted permission to
occupy the Kudikidappu. Even if the person who granted permission to
occupy, the Kudikidappukaran had possession of two cents only at the
time when he granted such permission it does not mean that the
Kudikidappukaran's rights would be reduced to such two cents, so long as
c the landowner had got more than ten cents ofland available adjoining the
Kudikidappu. Once the person in possession of the land has permitted the
Kudikidappukaran to occupy the Kudikidappu he acquires all the rights
conferred by the Act as Kudikidappukaran. First respondent continued to
have possession of over 60 cents of land and he cannot contend that there is
D no land available beyond two cents for the Kudikidappukaran to pur-
chase. [420-F; 421-C; DJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8259 of 2001 .
•
From the Judgment and.Order dated 18.1.2000 of the Kerala High Court
E in C.R.P. No. 1780 of 1991 (D).

Ms. S. Karthika, N. R. Shonkar and D.V. Deepak for the Appellant.

Harish Beeran and S. Udaya Kumar Sagar for the Respondent No. 2.

F Ramesh Babu M.R. for the Respondent No. 3.

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

G
Appellant is a "Kudikidappukaran" in the land of the first respondent.
He applied for purchasing ten cents of land adjoining to his "Kudikidappu".
The word "Kudikidappukaran" is defined in Section 2(25) of the Kerala Land
Reforms Act, 1963 (for short 'the Act'). Shorn of details of the definition which
are unnecessary for the purpose of this case, it means a person who has been
H permitted by a person in lawful possession of any land to occupy, with or
KUNJANVASU v. MADHAVAN ACHARI [THOMAS,!.] 419
without any obligation to pay rent, a hut belonging to such person and situate A
in the said land. (The person who is so permitted should have had neither a
homestead nor any land exceeding ten cents in any Panchayat area on which
he could erect a homestead). The word "Kudikidappu" means the land and the
hut so permitted to be occupied together with the easements attached thereto.

The controversy which has bogged down in this appeal is whether the B
appellant is entitled to· purchase ten cents of land as he claimed. The Land
Tribunal as well as the Appellate Authority found that he is entitled to purchase
ten cents of land. But a Division Bench of the High Court held that appellant
is entitled to purchase only two cents of land out of 60 cents belonging to the
first respondent. The impugned judgment of the Division Bench has thus c
upheld the contention of the respondents on that score.

Section 80A of the Act confers right on a Kudikidappukaran to purchase
the Kudikidappu occupied by him "and the land adjoining thereto." Sub-section
(3) thereof imposes a limit regarding the extent of land which he can purchase.
.Fn, the purpose of this case the said sub-section is important and hence it is D
extracted below:

. "(3) The extent of land which the Kudikidappukaran is entitled to
purchase under this section shall be three cents in a city or major
municipality or five cents in any other municipality or ten cents in a E
panchayat area or township:

Provided that where the land available for purchase in the land in
which the Kudikidappu is situate, or the land in which the kudikidappu
is situate, is less than the extent specified in this sub-section, the
kudikidappukaran shall be entitled to purchase only the land available F
for purchase or, as the case may be, the land in which the kudikidappu
is situate."

As the Kudikidappu is situated in a Panchayat area appellant claimed that
he has a right to purchase ten cents of land comprising of his Kudikidappu.
G
Appellant contended that he occupied the hut in 1959 whereas the respondents
contended that the occupation was made. only after 4.3.1963. The said conten-
tion was made by the respondent because Ext.RI-mortgage deed dated 4.3.1963
was executed by him in favour of the brother-in-law of the appellant. It is
submitted that the said mortgage is only for two cents of land and that the
Kudikidappu falls within the aforesaid area of two cents. H
420 SUPREME COURT REPORTS [200I] SUPP. 5 S.C.R.
A The Land Tribunal and the Appellate Authority found that appellant
came into occupation of the Kudikidappu much prior to Ext.RI dated 4.3.1963.
Appellant contended that Ext.RI-mortgage deed was created by the first re-
spondent in collusion with appellant's brother-in-law for the purpose of defeat-
ing the rights of the appellant. But the Division Bench of the High Court, in
interference with the concurreut fact finding of the Land Tribunal and the
B
Appellate Authority, came to the conclusion that appellant started occupying
the Kudikidappu only subsequent to Ext.RI dated 4.3.I963.

Even assuming that appellant started occupying the Kudikidappu only
after 4.3.I963, the question is whether appellant is entitled to purchase ten
c cents of land which includes the Kudikidappu. There is no dispute that first
respondent does not have an area of ten cents of land ad.1oining the Kudikidappu.
The Division Bench of the High Court while repelling the claim of the appel-
lant for purchasing ten cents of land, made the following observation:

"It is clear that the extent the Kudikidappukaran would be entitled to
D purchase would only be the extent that was the subject-matter of the
mortgage. A mortgagee in possession is a person who is competent to .
grant permission within the meaning of Section 2(25) of the Kerala
Land Reforms Act. Since on the materials available in this case it is
clear that the permission was granted only by the mortgagee who had
taken a mortgage of only two cents out of the property belonging to
E
the land owner, it is clear that the right to purchase the Kudikidappu
conferred on the Kudikidappukaran by the Kerala Land Reforms Act
would only be in respect of the land held by the mortgagee. That would
only be two cents in this case."

F In our view the Division Bench has committed an error of law in
thinking that a Kudikidappukaran is entitled to purchase only so much of land
which was in the possession of the person who granted the permission to
occupy the Kudikidappu. Section 80A(I) says that "notwithstanding anything
to the contrary contained in any law for the time being in force, a
Kudikidappukaran shall, subject to the provisions of this section, have the right
G to purchase the Kudikidappu occupied by him and lands adjoining thereto."

The extent of the land so purchasable by the Kudikidappukaran has been
fixed as ten cents if the land is in a Panchayat. It is so provided in sub-section
(3) of Section BOA of the Act, and the only condition on which the said extent
H can be reduced is envisaged in the proviso to the said sub-section. We have
KUNJAN VASU v. MADHAVAN ACHARI [THOMAS, J.] 421
. extracted the sub-section supra. The proviso shows that the extent would get A
reduced only if the land available for purchase is less than the extent specified
in the sub-section. In such a situation the Kudikidappukaran will be entitled to
purchase only the land available for purchase. Land available for purchase
... means the adjoining land available with the landowner for being purchased by
the Kudikidappukaran. Here, there is no contention for the respondent that
B
there is no land available beyond two cents. Merely because Ext.RI-mortgage
deed is for two cents does not mean that the first respondent has no land beyond
that extent.

It is admitted by the first respondent landowner that the Kudikidappu is
situatl!(! in his land the extent of which is about 60 cents. Even if the person c
who granted permission to occupy the Kudikidappukaran had possession of
two cents only at a time when he granted such permission it does not mean that
the Kudikidappukaran's rights would be reduced to such two cents, so long as
the landowner had got more than ten cents of land available adjoining the
Kudikidappu. Once the person in possession of the land has permitted the
Kudikidappukaran to occupy the Kudikidappu he acquires all the rights con- D
ferred by the Act as Kudikidappukaran. First respondent continued to have
possession over 60 cents of land and he cannot now contend that there is no
land available beyond two cents for the Kudikidappukaran to purchase.

In the aforesaid view of the matter it is unnecessary for us to consider E
whether appellant was inducted into the Kudikidappu prjor to Ext.RI dated
4.3.1963. We, therefore, allow this appeal and set aside the impugned judgment
of the High Court.

K.K.T. Appeal allowed.