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Gopalan v. Chellamma
Legal Opinion Summary: Construction of "kudikidappukaran" (clause (25), s.2, Land Reforms Act, I of 1964)
Factual and Procedural Background
The dispute in this second appeal concerns the meaning of the term "kudikidappukaran" under clause (25) of section 2 of the Land Reforms Act, I of 1964. The title to the plaint A-schedule property stood in the plaintiff's name; a building described in the plaint A-schedule was on that land. The 1st defendant is the plaintiff's cousin; the 2nd and 3rd defendants are the 1st defendant's son and daughter-in-law respectively.
The plaintiff alleged he had let the building to the 1st defendant at a monthly rent of Rs. 4 and instituted proceedings before the rent control court to evict the defendants. The defendants denied the lease and claimed title to the land and building. The plaintiff then filed O.S. No. 1408 of 1955 seeking a declaration of title and arrears of rent; the trial court found that the purchase enured to the plaintiff, that the building was put up by the 1st defendant, and that the plaintiff's alleged lease arrangement was untrue.
The plaintiff subsequently sued to compel removal of the building, averring it was erected without his consent. Defendants 1 and 2 claimed immunity as "kudikidappukars" under the Kerala Act XXX of 1958. The munsiff held that the defendants were kudikidappukars and not liable to eviction, and the additional district judge affirmed that finding. The plaintiff appealed to this Court in a second appeal.
Legal Issues Presented
- How is the term "kudikidappukaran" to be construed under clause (25) of section 2 of the Land Reforms Act, I of 1964 (in light of earlier Kerala Act XXX of 1958 and its explanations)?
- Whether the defendants qualify as "kudikidappukars"—in particular, whether the erection of the homestead (or occupation of a hut) was with the permission required by the statutory definition.
- Whether explanation II to the definition (a deeming fiction relating to occupation on 11 April 1957 and continuance to the commencement of the Act) supplies the requisite permission where the homestead was erected before that date.
- Whether the trial and appellate courts correctly found that the defendants were entitled to immunity from eviction without a finding as to whether the plaintiff had given the necessary consent.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff's pleadings and later suit assert that the building on his land was put up without his consent and that he is the owner of the land and title stands in his name.
- The plaint denied any consent by the plaintiff to the erection of the building and sought removal of the structure and recovery of rents claimed earlier.
Defendants' Arguments
- The defendants initially denied any lease and asserted title to the land and building; subsequently, defendants 1 and 2 claimed immunity as "kudikidappukars" under the Kerala Act XXX of 1958 (and, by direction of section 132(1) of the Land Reforms Act, their claim must be considered under the definition in the Land Reforms Act I of 1964).
- The defendants asserted they had no other homestead or land to erect a homestead and claimed they had been in occupation from before 11 April 1957; the munsiff and the additional district judge treated explanation I/II as deeming permission for such occupation and thus held them to be kudikidappukars.
- Counsel for defendants contended that the fictional permission deemed under explanation II would apply to the erection of a homestead as well (i.e., that the deeming would validate earlier erection without separate proof of consent).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Karunakaran Nair v. Ramakrishnan Nair (1966 KLT 351) | Explains the effect of the present-perfect tense "has been"—that it connotes a completed event continuing in operation (i.e., a permission which continues to be effective up to the relevant time). | The Court relied on this principle to interpret sub-clauses (i) and (ii) of the statutory definition, concluding that the permission required by those sub-clauses must be continuing in effect at the relevant time and that a permission once given but subsequently withdrawn will not satisfy the statutory requirement. |
Court's Reasoning and Analysis
The Court began by setting out the statutory definition of "kudikidappukaran" in clause (25) of section 2 of the Land Reforms Act, I of 1964 and the explanations appended to it. From the text of the definition the Court identified three cumulative conditions that must be satisfied for a person to be a kudikidappukaran:
- The person should have neither a homestead nor any land, either as owner or as tenant in possession, on which he could erect a homestead.
- The person should have been permitted either (a) to have the use and occupation of a portion of the land for erecting a homestead, or (b) to occupy a hut situate on the land.
- The person should have no other interest in the land.
The Court analyzed the role of explanation II (the deeming provision). It noted that explanation II deems the requisite permission to exist without proof where a person "was in occupation of a kudikidappu on the 11th day of April 1957" and continued in occupation until the commencement of the Act. The Court emphasized that the term "kudikidappu" in the definition inherently imports that the original occupation must have been with permission (i.e., the statutory concept of a kudikidappu presupposes permission to erect or occupy).
The Court rejected the defendants' contention (and the approach of the courts below) that explanation II supplies a fiction validating the original erection of a homestead without actual evidence of consent. The explanation, the Court held, uses past and future language ("was in occupation" and "shall be deemed to be in occupation with permission") and thus the fictional deeming only relates to the continued occupation at the commencement of the Act, not to the original act of erection prior to 11 April 1957.
The Court further distinguished between the phrases used in sub-clauses (i) and (ii): sub-clause (i) refers to permission to have "the use and occupation" of a portion of land (for erecting a homestead), while sub-clause (ii) refers to permission to "occupy" an existing hut. The Court concluded that even if the word "occupation" in explanation II referred to occupation that existed on 11 April 1957, it could not be read to validate an earlier "use and occupation" (i.e., permission to erect) prior to that date without proof.
Relying on Karunakaran Nair v. Ramakrishnan Nair, the Court observed that the present-perfect "has been" used in sub-clauses (i) and (ii) denotes an event completed but continuing in operation; therefore, to satisfy the statutory definition the permission must be continuing in effect at the relevant time. A permission once given but later withdrawn will not meet the statutory requirement. The Court illustrated the point: a trespasser who forcibly erected a homestead despite the owner's opposition—even if in occupation since before 11 April 1957 and continuing until the commencement of the Land Reforms Act—would not qualify as a kudikidappukaran because the original erection lacked the requisite permission.
Applying these interpretive conclusions to the present case, the Court observed that a determination whether the building had been erected with the plaintiff's consent was necessary to decide the defendants' claim to kudikidappukaran status. The courts below had not made a finding on that crucial fact (the plaint expressly denied the plaintiff's consent). Because the statutory definition requires proof that the erection or occupation commenced with permission (or that the occupation was of a kudikidappu qualifying under explanation II), the absence of a finding on consent meant the prior decrees granting kudikidappukaran status could not stand.
Holding and Implications
Core Ruling: The decree conceding the status of "kudikidappukaran" to the defendants is discharged and the suit is remitted for fresh disposal to the court of trial.
Consequences for the parties:
- The matter must be retried at the court of trial with specific inquiry and findings on whether the building was erected by the 1st defendant with the plaintiff's consent (a necessary factual element to qualify as a kudikidappukaran under the Act).
- Costs of this second appeal and of the lower appellate court are to be treated as costs in the cause and are left to the munsiff for determination at the fresh disposal.
No broader legal implications beyond the application of the statutory construction and the single cited authority are discussed in the opinion.
1. The controversy in this second appeal is of the construction of the definition of a kudikidappukaran in clause (25) of s. 2 of act i of 1964.
2. The facts are thus: the title deed to the plaint b schedule property stands in the name of the plaintiff. There is a building on the property which is described in plaint a schedule. The 1st defendant is a cousin of the plaintiff. The 2nd defendant is the son and the 3rd defendant daughter - in - law of the 1st defendant. Alleging that the building has been let by him to the 1st defendant, On a monthly rental of rs. 4/ -, The plaintiff instituted proceedings before the rent control court for eviction of the defendants. The defendants denied lease and claimed title to the land and the building. Thereupon the plaintiff instituted o. S. No. 1408 of 1955 for declaration of his title to the land and building and for recovery of arrears of rent. The 1st defendant claimed the purchase in the name of the plaintiff to have been with her funds for
her benefit and the building to have been put up by her. The purchase was found to enure to the plaintiff, The building to have been put up by the 1st defendant, And the lease arrangement set up by the plaintiff untrue. The plaintiff then instituted the present suit to compel the defendants to remove the building from his land, Averring that it was put up without his consent. Defendants 1 and 2 claimed immunity of a kudikidappukaran under the kerala act xxx of 1958. The munsiff held:
"the defence case is that they are kudikidappukars, Since they have no other building to reside or land to erect a homestead. Plaintiff has not proved that defendants have any other property or building of their own. Plaintiff as p. W. 1 says that a schedule building is worth only below rs. 40/ -. Even according to the plaintiff defendants are residing there from karkadakom 1123 onwards. So according to explanation i to s. 2 of act 30 of 1958 defendants must be deemed to have constructed a schedule building with the consent of the plaintiff for their residence. In the circumstances i find that the defendants are kudikidappukars as defined in act i of 1957, As amended by act 30 of 1958. That they are not liable to be evicted and that hence a schedule building is not liable to be removed."
on appeal, The additional district judge held:
"the defendants have claimed the rights of kudikidappukars in para. 18 of the written statement. They have definitely stated that they have no other building or land to erect a building for their residence. There is no evidence in this case to show that the defendants have any other building or land to erect a building. It is not disputed that the value of the building will be below rs. 400/ -. In such circumstances, It has to be held that the defendants are entitled to the rights of kudikidappukars. So, They cannot be evicted from the building and the building cannot be demolished."
the plaintiff has come up in second appeal.
3. The definition of a kudikidappukaran in the act xxx of 1958 ran thus:
"'kudikidappukaran' means a person who has no homestead or land of his own to erect a homestead and
(i) who has been permitted with or without an obligation to pay rent by an owner of land to have the use and occupation of a portion of the land in his possession for the purpose of erecting a homestead, Or
(ii) who is in occupation of a but constructed by a person owning and possessing the land in which the but is situated and who has been permitted by such person to occupy the but with or without an obligation to pay rent, But otherwise has no interest in the land; and
'kudikidappu' means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto, And includes an ulkudi.
explanation i. Any person who was in occupation of a kudikidappu on the commencement of the kerala stay of eviction proceedings ordinance, 1957, Shall be deemed to be in occupation of such kudikidappu with permission as required under this clause.
explanation ii. For the purpose of this clause 'hut' means any dwelling house which has a value not exceeding four hundred rupees. "
the munsiff appears to have assumed that as per explanation i to the above definition persons who have been residing in a building worth below rs. 400/ - from a date anterior to the 11th day of april 1957, And have no "other property or building of their own" would be kudikidappukars irrespective of any consent on the part of the landlord concerned, And the additional district judge has affirmed it.
4. It is conceded at the bar that the defendants' claim has now to be decided in the light of the definition in the land reforms act, I of 1964 hereinafter 'the act' for short as directed in s. 132 (1) of the act. Clause (25) of s. 2 of the act (i of 1964), So far as is relevant here, Reads thus:
"'kudikidappukaran' means a person who has neither a homestead nor any land, Either as owner or as tenant in possession, On which he could erect a homestead and
(i) 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 and occupation of a portion of such land for the purpose of erecting a homestead; or
(ii) who has been permitted by a person in lawful possession of any land to occupy, With or without an obligation to pay rent, A but belonging to such person and situate in the said land, But otherwise has no interest in the land; and
'kudikidappu' means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto:
explanation ii. Any person who was in occupation of a kudikidappu on the 11th day of april, 1957, And who continued to be in such occupation at the commencement of this act, Shall be deemed to be in occupation of such kudikidappu with permission as required under this clause.
it is obvious from the above definition that to be a kudikidappukaran under the act,
(i) the person should have neither a homestead nor any land, Either as owner or as tenant in possession, On which he could erect a homestead; (ii) he should have been permitted
(a) to have the use and occupation of a portion of the land for erecting a homestead, Or
(b) to occupy a but situate in the land; and (iii) he should have no other interest in the land.
explanation ii appended to the definition enacts that the requisite permission shall be deemed, Without proof, To exist when occupation of a "kudikidappu" on the 11th day of april 1957 and the continuance of such occupation till the commencement of the act are proved. Kudikidappu, By its very definition in the same clause (quoted above), Refers to the land and the homestead permitted to be erected or the but permitted to be occupied. In order to claim the benefit of explanation ii it has necessarily to be shown that the original occupation was of a kudikidappu. The effect of explanation ii is that a person, Who has no land or homestead of his own and who was permitted to put up a homestead on a portion of the land in lawful possession of another or to occupy a but thereon and has been in occupation of such homestead or but from the 11th day of april 1957, To the date of commencement of the act, Will not lose the benefit of such permission even though it was subsequently withdrawn and even though he was ousted from the land after the commencement of the act.
counsel for defendants contended that the fictional permission deemed under explanation ii would apply to the erection of a homestead as well, As has been held by the munsiff. I am afraid, This contention is not warranted by the wording of the explanation. It uses the expression "was in occupation ' when it refers to a past event, And says "shall be deemed to be in occupation. With permission". Obviously the fictional permission relates only to the later occupation on date of commencement of the act and not to the old occupation had on the 11th day of april 1957. The explanation refers to a'kudikidappu' which, By its very definition, Implies necessity of a permission to erect a homestead or to occupy an existing hut. The permission required to constitute a kudikidappu is only to erect a homestead or to occupy an existing hut. Under the definition, The moment a homestead was erected with permission or a but was occupied with permission it constituted a kudikidappu, And no question of continuance of permission arises there. If the person "was in occupation of a kudikidappu on the 11th day of april 1957" here facts have to be established by proof without aid of any fiction and he continued to be in occupation of the kudikidappu, With or without permission, At the commencement of the act such continued occupation will be deemed to be with permission without any proof.
5. It is pertinent to note here that sub - clause (i) of the definition refers to permission to have "the use and occupation" of a portion of the land while sub - clause (ii) refers to permission to "occupy" an existing hut. It follows that even if the expression "occupation" in explanation ii relates to occupation had on the 11th day of april 1957, It cannot relate to the "use and occupation" of a portion of the land anterior to that date.
6. It may be noted that with reference to the permission either to have the use and occupation of a portion of the land for erecting a homestead or to occupy a but already on the land the tense used in sub - clauses (i) and (ii) of the definition is the present - perfect "has been", Which, As explained by me in karunakaran nair v. Ramakrishnan nair (1966 klt. 351), Connotes a completed event continuing in operation. In other words, To satisfy the definition, The permission given must be continuing in effect to the relevant time; and a permission once given and subsequently withdrawn or otherwise come to termination will not satisfy the expression in sub - clauses (i) and (ii) of the definition. Explanation ii extends the effect of the permission had for occupation of a kudikidappu to the date of commencement of the act when a statutory immunity from eviction is conceded.
it is clear from the above that to be a kudikidappukaran either the erection of the homestead or the occupation of the but must commence with permission of the landlord. A treapasser who made forcible entry into the land of another and put up a homestead thereon, In the teeth of opposition by the landlord, Even though he might have occupied the same before the 11th day of april 1957 and continued that occupation to the date of commencement of the land reforms act, Will not be within the definition of a kudikidappukaran.
7. In order therefore to adjudge the claim of the status of a kudikidappukaran advanced by the defendants it has to be found whether the building was erected by the 1st defendant on the land of the plaintiff with the latter's consent. As no finding has been entered in this regard by the courts below, (the plaint has denied it) the decree conceding the status of a kudikidappukaran to the defendants has to be discharged and the suit remitted for fresh disposal to the court of trial. The costs in this second appeal, As well as that in the lower appellate court, Will be costs in the cause and are left to the munsiff at the fresh disposal.
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