IN THE HIGH COURT OF KERALA AT ERNAKULAM 

 The Hon'ble MR. Justice PIUS C.KURIAKOSE 

The Hon'ble MR. Justice N.K.BALAKRISHNAN

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R.C.R. No.253 of 2009

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Dated this the 3rd day of January 2011 

1. VIJAYALAKSHMI, W/O.LATE BALAN,

... Petitioner

2. ANIL KUMAR, S/O.BALAN,

Vs

1. MAROLI DHANESH KUMAR,

... Respondent

2. ANITHA, AGED 34 YEARS,

3. VINITHA, AGED 32 YEARS,

4. RANJITH, AGED 38 YEARS,

For Petitioner :SRI.K.V.PAVITHRAN

For Respondent :SRI.O.RAMACHANDRAN NAMBIAR

O R D E R

N.K.Balakrishnan, J.

Supplemental respondents 2 and 6 in RCP No.53/1995 on the file of the Rent Control Court, Kuthuparamba are the revision petitioners. The landlords claimed eviction under Sections 11(3) and 11(4)(ii) of Act 2 of 1965. Since the claim under Section 11(4)(ii) was disallowed by both the statutory authorities and since that is not challenged, the only surviving point for consideration is whether the order of eviction passed under Section 11(3) of the Act requires any interference at the hands of this Court.

2. The tenants contended that they are 'kudikidappukars' and so the eviction petition is .unsustainable. The plea of 'Kudikidappu' raised by the tenants were referred to the Land Tribunal under Section 125(3) of KLR Act. The Land Tribunal entered a finding that the tenants (respondents in the RCP) are not 'kudikidappukars'. The finding so entered by the Land Tribunal was accepted by the learned Rent Control Court. The evidence given by the landlord as PW1 that he bonafide needs the petition schedule building for his own residential accommodation was not accepted by the learned Rent Controller. Hence the RCP was dismissed by the Rent Control Court.

3. In appeal, the learned Appellate Authority after reappraisal of the evidence came to a conclusion that the need projected by the landlord/PW1 is a genuine and honest one. It was also found by the Appellate Authority that the respondents in the RCP are not 'kudikidappukars'. Thus order of eviction was passed by the Appellate Authority under Section 11(3) of the Act.

4. In this revision petition which is filed by the .supplemental 2nd and 6th respondents in the RCP, the impugned judgment is challenged on various grounds. The main ground urged by the revision petitioners is that the learned Appellate Authority should have accepted the Special Revenue Inspector's report filed before the Land Tribunal in which it was stated that at the time of construction of the building there was no practice of letting it out on rent and if at all had it been let out, it would have fetched only 50 paise per month and if that be so, the building in question would come within the definition of 'hut' as explained in Section 2(25) of KLR Act. This contention has been taken strong exception to by Sri.Ramachandran Nambiar, the learned counsel for the landlords. When the matter was referred to the Land Tribunal under Section 125(3) of KLR Act, the landlords produced certified copy of the general account produced by the Advocate Commissioner in the final decree application in O.S.No.1102/1959 of Munsiff Court, Kuthuparamba. Referring to the report it was observed that the house .building shown therein was valued separately in 3 parts describing them as  "Thekkini", "Padinjatta"; and "Kitchen". That would, according to Sri.Ramachandran Nambiar, the learned counsel for the landlords make it abundantly clear that  "Thekkini"  referred to therein was part of the main building of which the other portions were "Padinjatta" and "Kitchen". It was also submitted by the learned counsel that the  "Thekkini"  portion mentioned above alone was valued by the Advocate Commissioner even at that point of time at Rs.4,481/-. Since that value must naturally be the value obtained after deducting depreciation value certainly  "Thekkini"  portion alone should have been of much higher value at the time of construction. This has been projected by the learned counsel for the landlords to fortify his submission that it would give us a clear picture that it was a two storeyed pucca tiled building attached to the main building and so in any event the monthly rent that could have fetched for this building must have been much more than Rs.10/-. It is also submitted that at the time of . entrustment of the petition schedule building to the tenant the monthly rent admittedly fixed was Rs.50/-. That also is a clear indicia to hold that the observation made by the Revenue Inspector in his report submitted to the Land Tribunal that the monthly rent at that time would have been only 50 paise is totally unfounded, if not a mere conjecture or surmise.

5. The observations made in Ext.B1 produced before the Land Tribunal would also strengthen the plea raised by the landlords that the petition schedule building is only part of the main building. It is submitted by the learned counsel for the landlords that the petition schedule building which is described as  "Thekkini"  is situated so close and attached to the main building that the roof of the  "Thekkini"  portion is seen beneath the eaves of the main building touching each other. Therefore, the petition schedule building cannot be treated as a separate building. The very fact that this building was described as "Thekkini" even in the partition suit would lend support to the view that it always . remained as part of the larger structure.

6. The learned counsel for the landlords has placed reliance on the Full Bench decision inMuhammad v. Imbichibi [1974 KLT 738 (F.B.)] where it was held : "There is nothing in the Act which would militate against such a construction. It would therefore be proper to understand "hut" as meaning a "dwelling house" complete in itself and not a place which is merely a part of larger structure which can be used for residential purposes. Such a meaning would also accord with the popular meaning of the word  "hut" .  "Hut" is normally understood as a very small house complete in itself and low in cost. The word  "hut"  conveys an idea quite different from a mere portion of a building or a larger structure which is used as a dwelling place. Nobody, we conceive, would refer to a flat or part of a street house even if complete in itself in that it provides necessary facilities for being used as a dwelling place, as a  "hut"  The aforesaid decision was followed by this Court in Parukutty v. Sarasamma [2002(2) KLT 259]. If part of a building is treated as "Kudikidappu", the purchase of adjoining land of the extent permissible would be unworkable as in this case. Going by the description of the . building and the situation emerging in this case it can be safely concluded that the petition schedule building is not an independent building or a separate entity in itself but only a part of the main structure. If that be so, going by the ratio adumbrated in the Full Bench decision mentioned above, the claim for "Kudikidappu' put forward by the tenants must fall to the ground.

7. Yet another argument was also addressed on behalf of the landlords pointing out that 4 cents of land was purchased by the tenants situated in the very same Kuthuparamba Municipality and so that also would dis- entitle the tenants/revision petitioners from claiming 'kudikidappu' as the land whereon the building can be constructed is more than 3 cents in extent. But Sri.Pavithran, the learned counsel for the tenants would submit that the petition schedule building is not situated in a major municipal town but only in 'other municipal town' and as such in order to dis-entitle them from getting 'kudikidappu' the total extent of the land held by them . should be 5 cents or more. Be that as it may, since the claim made by the revision petitioners that they are 'kudikidappukars' entitled to get 'kudikidappu' right is found unsustainable in view of what has been stated earlier, the finding entered by the learned Appellate Authority on that point is confirmed.

8. Now the only other point that survives for consideration is whether the bonafide need projected by the landlords is true. Though it was contended that PW1, the landlord was residing at Wayanad as he was then employed there is no evidence to show that he is having any other building of his own in Kuthuparamba where the petition schedule building is situated. The learned counsel for the landlords has also submitted that at the time when evidence was given PW1 was working in Wayanad but he retired from service and is having no other building of his own in Kuthuparamba for his residential accommodation. The need projected by him is thus found to be a genuine and honest one and as such we are of the considered view that .the landlords are entitled to get an order of eviction under Section 11(3) of the Act. There is no illegality, irregularity or impropriety warranting invocation of revisional jurisdiction under Section 20 of the Act.

9. Sri.Pavithran, the learned counsel for the revision petitioners has now made a fervent request to grant one year time to the tenants to vacate the petition schedule building. Though this request is stoutly opposed by the learned counsel for the landlords, we are inclined to grant time till 31.12.2011 on certain conditions :- The revision petition stands dismissed. The tenants/revision petitioners shall file an affidavit within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the landlord on or before 31.12.2011 and undertaking further to discharge the entire arrears of rent if any within two months from today and to pay occupational charges at the rate of Rs.100/- per month with effect from 1.2.2011, as and when it falls due. It is further made clear that the revision .petitioners will get the benefit of time granted as above only if they file the affidavit on time and honours the undertakings contained therein.

PIUS C. KURIAKOSE,

JUDGE.

N.K.BALAKRISHNAN,

JUDGE.

Jvt