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Advocates
  • C.K.Viswanatha Iyer
  • V.P.Gopalan Nambiar
Judges
  • Mr. Justice Sankaran
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • C.K.Viswanatha Iyer
  • V.P.Gopalan Nambiar
Judges
  • Mr. Justice Sankaran
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Smart Summary

Structured Summary of the Opinion — Revision Petition arising from O.P. 12/1955

Factual and Procedural Background

This revision petition arises from an order passed by the District Munsiff at Thaliparamba in O.P. No. 12 of 1955. The dispute concerns the jenmom right in respect of a paramba of 37 cents, said to belong to the thavazhi of the counter-petitioners. The land was demised on kanam as early as 1924. The petitioner claims to have taken assignment of the original tenant's rights under a registered document dated "29 21932" and to have been in possession ever since as a kuzhikanam tenant.

The petitioner asserted that he had put up a residential building on the property, was residing there, and required the entire 37 cents for convenient residence. He filed O.P. No. 12 of 1955 under Section 34 of the Malabar Tenancy Act (Act XIV of 1930, as amended by Act XXXI of 1951 and Act VII of 1954), seeking an order compelling the respondents to sell their jenmom right at the current market price.

The respondents resisted, contending that the petitioner was not the holder of a kudiyiruppu and thus not entitled to relief under Section 34; that no residential building had existed on the property; that the petitioner did not and had not resided on the property but in a neighbouring compound; and that the petitioner had only commenced an incomplete building on the land and had not taken residence therein.

The learned District Munsiff, after considering evidence (including a commissioner's inspection report), found facts adverse to the petitioner—no original building existed on the property, the petitioner had not resided on it and was residing in an adjoining property, and the building on the claimed land was incomplete and unfurnished. Notwithstanding these findings, the learned Munsiff held that the petitioner was entitled to the benefits of Section 34 and declared his right to a sale of the jenmom right. The present revision petition by the respondents challenged the legality and sustainability of that order.

Legal Issues Presented

  1. Whether the petitioner satisfied the essential condition of Section 34 of the Malabar Tenancy Act by showing that a "separate or separable kudiyiruppu" had been in his occupation for the requisite period (ten consecutive years).
  2. Whether a building that is "fit for residence" but not yet occupied — i.e., an unfinished/unfurnished building not actually used for residence — suffices to constitute a kudiyiruppu in occupation and thereby attract the rights under Section 34.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner asserted he acquired the tenant's rights under a registered document dated "29 21932" and had been in possession as a kuzhikanam tenant since that assignment.
  • He claimed to have erected a residential building on the 37-cent paramba, that he was residing therein, and that the entire extent was necessary for convenient residence in that building.
  • On that basis he sought relief under Section 34 of the Malabar Tenancy Act to compel sale of the jenmom right to him at the current market price.

Respondents' Arguments

  • The respondents contended that the petitioner was not the holder of a kudiyiruppu and therefore was not entitled to claim relief under Section 34.
  • They asserted that there was never a residential building on the disputed property, that neither the petitioner nor anyone else had resided on it, and that the petitioner actually resided in a building in an adjoining compound.
  • The respondents further argued that the petitioner had only commenced construction of a building on the property and that the building remained incomplete and unfurnished; thus no residence had commenced there.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Koppirichi v. Kunhi Raman (1945) 2 M.L.J. 471 Illustrates that where a residential building existed on the site throughout the relevant period and the tenant actually resided there, the tenant's occupation of the kudiyiruppu for the requisite period supported a claim under the statute. The court observed that this ruling does not support the petitioner's argument that mere continuous possession of a vacant site suffices; in Koppirichi there was an actual residential building throughout and the tenant resided there, which is materially different from the present facts.
Arumugha Konar v. Sanku Muthammal (1950) 1 M.L.J. 794 Holds that if a residential building collapses and the site remains vacant for a period (three years in that case), the site cannot be deemed to have been a kudiyiruppu during that vacant period; continuity of occupation required by the statute is thus interrupted. The court relied on this authority to support the proposition that a period of vacancy defeats the continuous occupation requirement under Section 34 and that a vacant site (or one without actual residence) will not qualify as a kudiyiruppu for the purposes of the section.

Court's Reasoning and Analysis

The court's analysis proceeds from both fact-finding and statutory interpretation:

  1. Findings of Fact: The court accepted the District Munsiff's factual findings as unassailable and supported by the evidence. A commissioner’s inspection report (Ext. C1) explicitly recorded that the new building on the property was unfurnished and showed no sign of occupation, and that the petitioner was residing in another house in an adjoining compound. The petitioner had admitted residing elsewhere in cross-examination. The District Munsiff correctly rejected the petitioner's assertion of a pre-existing residence demolished three years prior to the petition as false.
  2. Statutory Text and Definitions: The court examined Section 34 of the Malabar Tenancy Act and the definition of "kudiyiruppu" in sub-section 17 of Section 3. Section 34 conditions the special right to purchase on the existence of a "separate or separable kudiyiruppu" that has been in occupation for ten consecutive years. "Kudiyiruppu" is defined to include "the site of any residential building," sites of appurtenant buildings, lands necessary for convenient enjoyment of such residential building, and easements; crucially, the definition emphasizes the existence of a residential building.
  3. Meaning of "Occupation": The court interpreted "occupation" in the context of Section 34 not in its broadest sense of mere possession (actual or constructive), but as "actual possession and use," which necessarily connotes residence in the building standing on the kudiyiruppu. Thus occupation entails residence in a residential building on the site.
  4. Rejection of the Munsiff's View: The lower court had taken the view that it would be sufficient for a tenant to claim benefits under Section 34 if he established that the house put up is "one fit for residence although not yet already occupied." The revising court held this view to be erroneous and unsupported by the language of Section 34, because the statutory framework requires actual occupation (residence) of a kudiyiruppu for the requisite period.
  5. Application of Precedents: The court discussed authorities to illustrate the point. Koppirichi was distinguished on the ground that there the site had housed a residential building throughout the ten-year period and the tenant actually resided there. Arumugha Konar supported the proposition that a site that becomes vacant (because a building collapsed) cannot be treated as a kudiyiruppu during the vacant period and that the continuity requirement for Section 34 is thereby broken.
  6. Conclusion from Facts and Law: Applying the statutory definition and the facts, the court concluded that the elementary requirement of existence of a kudiyiruppu was not met in the present case. There had never been a residential building on the property; the petitioner had only begun construction around the time of filing and the structure was unfurnished and unoccupied at the time of the petition. Therefore, the petitioner could not be said to have occupied a kudiyiruppu, let alone for a continuous period of ten years, and so was not entitled to benefits under Section 34.

Holding and Implications

Core Ruling: The revision petition is allowed; the order of the lower court is set aside; the tenant's petition under Section 34 is dismissed with costs throughout.

Implications:

  • Direct effect on the parties: The tenant's claim for a compulsory sale of the jenmom right under Section 34 was rejected, and the relief granted by the District Munsiff was vacated. The respondents succeed in the revision and the petition is dismissed with costs.
  • Interpretive clarification: The court reiterated that Section 34's protections apply only where a "kudiyiruppu" exists (which requires a residential building) and where there has been actual occupation (residence) of that kudiyiruppu for the statutory period. A structure that is unfinished, unfurnished, and not occupied does not satisfy the statutory requirement of "occupation" for the purpose of Section 34.
  • Precedential impact: The opinion applies and aligns with prior authorities cited (Koppirichi and Arumugha Konar) to construe the occupation requirement; the decision operates to deny the Section 34 remedy where there is no residential building in occupation for the requisite period. The opinion does not purport to create a novel legal doctrine beyond this statutory application.

Costs: The court ordered dismissal with costs throughout in favour of the respondents.

Show full summary ...

    Sainava Umma And Others v. Kunhammad

    1. The order passed by the district munsiff at thaliparamba in o. P. 12/1955 has given rise to this revision petition. The jenmom right of a paramba, 37 cents in extent and which is described in that petition, Belongs to the thavazhi of the counter - petitioners. This property has been demised on kanam as early as in the year 1924. The rights of the original tenant were taken assignment of by the petitioner under a registered document dated 29 21932 and ever since that time he has been in possession of the property as a kuzhikanam tenant. According to him he has put up a residential building in this property and he is residing therein and that the entire 37 cents of property is necessary for his convenient residence in the building put up by him. It is on these allegations that he filed o. P. No. 12 of 1955 under s. 34 of the malabar tenancy act (act xiv of 1930, As amended by act xxxi of 1951 and act vii of 1954) praying for an order compelling the respondents to sell their jenmom right over the property to him at the current market price. The respondents resisted the petition and contended that the petitioner is not the holder of a kudiyiruppu and that he is not entitled to claim the relief contemplated by s. 34 of the malabar tenancy act. They further contended that there was no residential building on this particular property at any time, That neither the petitioner nor anybody else has ever resided in this property, That he is residing in a building situated in a neighbouring compound belonging to him, That he has started construction of a building in the property in question and that the said building being in an incomplete condition, The petitioner has not commenced his residence therein. On a due consideration of the evidence on record, The learned district munsiff found that originally there was no building in the property, That the petitioner has never resided in this property, That he is residing in his building in an adjoining property belonging to him and that the petitioner has only started construction of a new building in the property in his possession as a kanam tenant and that it has not reached a habitable condition and as such nobody has commenced residence in that unfurnished building. In spite of these findings, The learned munsiff held that the petitioner is entitled to the benefits conferred by s. 34 of the malabar tenancy act and accordingly passed an order declaring his right to get a sale of the jenmom right of the property from the respondents. In the present revision petition filed by the respondents, They have challenged the legality and the sustainability of that order.

    2. The findings recorded by the learned munsiff on the relevant questions of fact are not open to any objection and they are also fully supported by the evidence on record. A commissioner was deputed to inspect the property and to report about its condition ext. C1 is the report submitted by him and it is clearly stated therein that the new building which was in the course of construction was seen to be in an unfurnished condition and that there was no sign of anybody having resided therein. The commissioner has also stated that he found the petitioner residing in another house in an adjoining compound. The petitioner himself had to admit this fact in his cross - examination. His story that there was an old building in the kanam property and that it was demolished by him about 3 years prior to the filing of this petition was rightly rejected as false by the learned munsiff. He also repelled the petitioner's contention that he will be entitled to claim the benefits of s. 34 even in the absence of any residential building in the property in question. However, The learned munsiff has taken the view that

    "it would be sufficient for the tenant to claim the benefits of s. 34 if he establishes that the house put up is one fit for residence although not yet already occupied"
    . This view is clearly erroneous and it does not gain any support from s. 34.

    3. S. 34 of the malabar tenancy act is in the following terms:

    "where a separate or separable kudiyiruppu has been in the occupation of a tenant or the members of his family, Tarwad, Thavazhi illom, Kutumba or kavaru for a period of not less than ten consecutive years, Whether before or after the commencement of the malabar tenancy (amendment) act, 1951, The tenant shall be entitled to purchase the rights of his immediate land - lord therein on payment to such land - lord of the current market price of such rights and the arrears of rent, If any:

    provided that where the tenant is too poor to pay the price aforesaid in a lump sum, The court may, On the application of the tenant, Order that it shall be paid to the immediate land - lord with interest at 51/2 per cent per annum in as many annual instalments not exceeding twelve, As the court may fix, Having regard to the means of the tenant, On condition that sufficient security is furnished by the tenant for the regular payment of such instalments".

    it is obvious from the section that the essential condition to be satisfied for claiming the benefit under it is that the tenant has to make out that the kudiyiruppu has been in his occupation for the requisite period. For understanding what is a kudiyiruppu, We have to go to the definition of that expression as given in sub s. 17 of s. 3 of the act. That definition is as follows:

    "kudiyiruppu" means and includes the site of any residential building, The site or sites of other buildings appurtenant thereto, Such other lands as are necessary for the convenient enjoyment of such residential building, And the easements attached thereto but does not include an ulkudi or kudikidappu:

    "separate kudiyiruppu" means a kudiyiruppu which is the sole property comprised in a holding;

    "'separable kudiyiruppu' means a kudiyiruppu which is included with other property in a holding and which is not necessary for the convenient enjoyment, As usual, Of any other part of the holding"
    .

    no ulkudi or kudikidappu is involved in this case and hence it is not necessary to advert to the definitions of these expressions.

    4. It is abundantly clear from s. 34 of the malabar tenancy act that it is intended to confer a special right on a tenant who has been in continuous occupation of a kudiyiruppu for a period of 10 years or more. This right will not be available in respect of any other portion of the holding which does not come within the definition of kudiyiruppu. A plot of ground can become a kudiyiruppu only when it forms or includes the site of a residential building. Where there is a residential building, Its site alone or inclusive of the site of other buildings appurtenant to the residential building and also so much more ground as may be necessary for the convenient enjoyment of the residential building together with the easements attached thereto will be deemed to be a kudiyiruppu. Where there is no residential building, There cannot be a kudiyiruppu. In other words, A vacant site not attached to a residential building will not be a kudiyiruppu. The existence of any kind of building on such a site will not also make it a kudiyiruppu. What is required is that there must be a residential building i. E., A building ordinarily used for residence. In the definition of 'kudiyiruppu', Particular emphasis is placed on the existence of a residential building. The fact that the premises necessary for the convenient enjoyment of the residential building is also treated as part of the kudiyiruppu, Definitely indicates that the building must be one used for residential purposes. A kudiyiruppu satisfying all these conditions must; have been in the occupation of the tenant or the members of his family for a continuous period of 10 years or more in order that the right conferred by s. 34 may be claimed against the land - lord. The word 'occupation' as used in this context is not used in its comprehensive meaning of possession, Actual or constructive, But means actual possession and use. Occupation or possession and use of a kudiyiruppu necessarily connotes residence in the building standing on the kudiyiruppu. In this view of the matter, The argument urged on behalf of the tenant that continuous possession of the building site for a period of 10 years is in itself sufficient to attract s. 34, Cannot be accepted as correct. The ruling in koppirichi v. Kunhi raman (1945) 2 m. L. J. 471 cited on his behalf does rot also lend support to such an argument. In that case the tenant's right to get a sale of the house site from the land - lord was upheld on the ground that the house site was in the occupation of the tenant for the requisite period of 10 years. There was a residential building at that site during the whole of this period and the tenant was residing in that house along with his family. The original house that existed on the site belonged to the land - lord and in the year 1941 the landlord permitted the tenant to pull down that house and received a sum of rs. 25 as its value from the tenant. After demolishing that building the tenant put up a new house of his own on the same site. The point raised on behalf of the land - lord was that the period of 10 years of occupation by the tenant should be computed from the year 1941 when the new building was pub up by the tenant. This contention was repelled and it was held that the tenant was entitled to get credit for the earlier period also when he was in occupation of the site by virtue of his residence in the old building that existed on the site in question. The question whether possession or occupation by the tenant of a vacant site for a period of 10 years would entitle him to claim the right to get sale of the same from the land - lord, Specifically arose for consideration in arumugha konar v. Sanku muthammal (1950) 1 m. L. J. 794). During the major part of this period there was a residential building over the site in question, But before the completion of the period in question the building collapsed and for a period of 3 years the site remained as a vacant site. It was held that during this period the site could not be deemed to have been a kudiyiruppu and that the tenant who had no occupation of the kudiyiruppu for a continuous period of 10 years could not claim the right to get a sale of the site from the landlord.

    5. So far as the present case is concerned, Even the elementary requirement of the existence of a kudiyiruppu is not satisfied in respect of the property claimed by the petitioner - tenant. There has never been a residential building on this property. He has only started construction of a building just about the time of filing the petition under s. 34. At the time of the petition that building was in an unfurnished condition and nobody had begun to use it as a residential building. Thus it cannot be said that the tenant has been in occupation of a kudiyiruppu, Not to speak of such occupation for a continuous period of 10 years as contemplated by s. 34. It follows, Therefore, That he is not entitled to claim the benefit conferred by that section and the learned munsiff acted illegally and against the provisions of that section in passing an order in favour of the tenant.

    6. In the result this revision petition is allowed and the order of the lower court is set aside and the tenant's petition is dismissed with costs throughout.

    allowed.

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    Comments

    Sainava Umma And Others v. Kunhammad
    (Jun 10, 1957)