http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil) 2560  of  1997

PETITIONER: MAMMU .

       Vs.

RESPONDENT: HARI MOHAN & ANR.

DATE OF JUDGMENT:       07/01/2000

BENCH: K.T.Thomas, D.P.Mohapatro

JUDGMENT:

MOHAPATRA,J.

L.....I.........T.......T.......T.......T.......T.......T..J

     This appeal is directed against the Judgment and Order of the High Court of Kerala dated 29th November, 1996 in CRP No.2495  of  1989.  The said revision petition was filed  by the  respondent herein under Section 103 of the Kerala  Land Reforms  Act  1963  (hereinafter referred to as  the  Act) challenging the Judgment dated 31-1-1989 of the Land Reforms Appellate  Authority,  Thrissur  in AA No.93/88.   The  High Court  having  allowed the revision petition on the  finding that  the respondent therein is not a Kudikidappukaran  with respect to the structure in question.  The respondent in the revision petition has filed this appeal.

     The  relevant  facts  necessary for  appreciating  the controversy  may be stated thus:  The respondent Hari  Mohan owns  an  extent  of  28.5   cents  of  property  in  Survey No.683/3of  Lokamaleswaram Village.  In that property  there is a building with four sets of rooms originally constructed as  shop rooms.  The said four rooms were separately let out to  four  persons  including the appellant.   All  the  four tenants filed original applications before the Land Tribunal for  purchase of kudikidappu right under Section 80-B of the Act.   The application filed by the appellant was registered as  O.A.   No.580  of  1973.    All  the  applications  were dismissed by the Land Tribunal, Kodumgalloor.  Excepting the appellant  the  other  tenants  did not  pursue  the  matter further.   The  appellant filed A.A.  No.715/76  before  the Appellate  Authority  (Land  Reforms),   Trichur  which  was allowed  holding  that the appellant is  a  kudikidappukaran entitled  to  purchase the kudkidappu.  The said  order  was challenged  by  the respondent in C.R.P.  2718/77 which  was allowed  by  the High Court by Order dated  25-4-1980;   the order  of  the  Appellate Authority was set  aside  and  the matter  was  remanded to the Appellate Authority  for  fresh disposal with the following observations:

     For  determining  this question several factors  will

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

have  to  be taken into account  the distance  between  the building  and  the structure, the object for which  and  the circumstances  under  which the structure was allowed to  be constructed,  whether it was free or subject to the  payment of rent, the existence of similar structures executed by the other   tenants   in  the   building,  and  other   relevant circumstances.   The Appellate Authority has not  considered these  various factors but has gone only by the distance  of about  Â¾  kole which  separates   the  structure  from  the building.   After  hearing both sides I am of the view  that this  omission  has  vitiated   the  order.   The  Appellate Authority  has  therefore  to be required  to  consider  the matter again.

     After  the  remand, the Appellate Authority passed  an order  in favour of the appellant.  The relevant portion  of the order reads:

     It  is seen that it is a separate building which  has no  connection  with the main building, as observed  by  the Appellate  Authority  earlier  that there is  about  Â¾ kole distance  between  the structure and the building.   It  has also  been stated that the applicant was permitted to reside with  his family when his wife had to undergo treatment.  It has  been  pointed out that rent was paid for the  structure and  that the rent paid for the main building included  that of  the  charthu  also.   It is an admitted  fact  that  the charthu  has been constructed by the appellant.  Therefore I do  not  find  any  reason  to believe that  it  is  not  an independent  hut.   It  was  argued  that  the  property  in question  lies  within  the   local  limits  of  Kodungallur Municipality.   The  Land  Tribunal,   will  consider   this question also when the area of kudikidappu is fixed.

     In the result, the appeal is allowed, the order of the Land  Tribunal is set aside and the case is remanded to  the lower  court for granting kudikidappu right to the appellant in the light of the directions given above.

     The  above order was not challenged in revision.   The Land  Tribunal  found that the appellant was entitled to  10 cents of land as kudikidappu and the certificate of purchase with respect to 7.73 cents which was the only available area was  in  order.  That order was challenged in appeal by  the respondent  before the Appellate Authority.  The appeal  was dismissed  on  the  finding, inter alia, that  the  previous order of the Appellate Authority was a final order and since that  order  was  not challenged in revision it  has  become final  and conclusive.  The order of the Appellate Authority was  challenged in revision before the High Court which  was allowed  by the impugned order.  From the discussion in  the impugned order, it appears that the main issue raised before the  High  Court  was  whether the order  of  the  Appellate Authority  remanding  the matter to the Land Tribunal was  a final  order and therefore was available to be challenged in revision,  or  it was merely an interlocutory order  against which  no revision could be filed.  Reliance appears to have been placed on certain previous decisions of the Kerala High Court  in  1976 Kerala Law Times 870 Joseph Vs.   Velayudhan Pillai  ,  1979  Kerala  Law Times 910  Mahadevan  Iyer  Vs. Bhagavaty Ammal and 1983 Kerala Law Times 435 Bhaskara Menon Vs.  Gangadharan.  In the light of the decisions noted above particularly in Bhaskara Menon Vs.  Gangadharan (supra), the view  was taken that the ‘final order within the meaning of Section 103 of the Act must be an order which puts an end to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

the  litigation between the parties, and an order of  remand in  which direction is issued to the concerned authority for doing  certain  things  in  relation  to  the  liability  or obligation  of  the parties is not a final order.  The  High Court  in  the  impugned order held that the  order  of  the Appellate  Authority  cannot be a final order deciding  upon the  rights  and  liability of the parties or  their  mutual obligations.     Therefore     the      objection    against maintainability of the Civil Revision Petition raised by the appellant  was  overruled.  On merits of the case  the  High Court  considered  the question whether the  structure  with respect  to which kudikidappu was claimed was really a  part of the building which was let out to the appellant or it was an  independent and separate structure.  Analysing the point the  High  Court observed that in case it was held that  the structure  in question was a part of the building which  was let  out  to  the appellant the claim of kudikidappu  is  to fail.     The    High     Court    quoted    the    relevant observations/directions  made  by  the court in  the  remand order  in  C.R.P.   2718  of 1977  which  have  been  quoted earlier.

     Analysing  in  detail  the evidence on record  in  the light  of the relevant factors noted in the previous  remand order  the  High  Court  came to  the  conclusion  that  the structure in question is not an independent structure and it is  only an adjunct or appurtenance to the shop room let out to the appellant.  On the basis of the said finding the High Court  held  that  with  respect   to  such  an  appurtenant structure,  the claim of kudikidappu will not lie.  The High Court  faulted  the order of the Appellate  Authority  under challenge  on  the  ground that the authority  did  not  pay attention  to  different  relevant   factors  noted  in  the previous remand order of the High Court and passed its order on  consideration of only one factor, that is, the  distance of  Â¾  kole between the structure which was let out  to         the appellant and the structure in respect of which the claim of kudikidappu  was made is noted above.  The revision petition was  allowed  and  the  order  of  the  Appellate  Authority upholding the kudikidappu right was set aside.

     On  the  case pleaded by the parties and the  findings recorded  by the Land Tribunal, the Appellate Authority  and the  High Court in the orders passed in the proceedings, two questions  emerge  for consideration:  (1) whether the  High Court  was  right  in holding that the order passed  by  the Appellate  Authority  remanding  the   matter  to  the  Land Tribunal   was  not  a  final   order  and  therefore,   not challengable  in  revision  before the High  Court  and  (2) whether  the  finding of the High Court that  the  appellant cannot  claim kudikidappu right in respect of the  structure in question is sustainable in law.

     Section  103 of the Act, so far as it is material  for the present proceeding , is quoted hereunder:

     103.   Revision  by  High   Court:-  (1)  Any  person aggrieved by-

       (i) any final order passed in an appeal against the order of the Land Tribunal or;

     (ii)  any  final order passed by the Land Board  under this Act or;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

     (iii)  any  final order of the Taluk Land Board  under this Act ,

     xxx xxx xxx

     may,  within such time as may be prescribed, prefer  a petition  to the High Court against the order on the  ground that  the appellate autority or the Land Board, or the Taluk Land  Board,  as  the  case   may  be,  has  either  decided erroneously, or failed to decide, any question of law.

     (2) The High Court may, after giving an opportunity to the  parties  to be heard, pass such orders as it deems  fit and the orders of the appellate authority or the Land Board, or  the Taluk Land Boad, as the case may be, shall, wherever necessary, be modified accordingly.

     The  question  that arises for consideration  in  this case  is  whether  the  order  of  the  Appellate  Authority remanding  the matter to the Land Board with a direction  to pass  order  in the light of the observations/directions  in the  order is a ‘final order within the meaning of  Section 103(1)  of  the  Act?   The Kerala  High  Court  in  certain decisions  has  taken  the  view that only  an  order  which disposes  of a proceeding before the Land Board, can be said to  be a ‘final order and against such an order, a revision petition  shall  lie;   any  other order  of  the  appellate authority  which  does not dispose of the proceeding  before the  Land Board cannot be said to be a ‘final order and  no other  revision  petition shall lie against such  an  order. This  interpretation, in our considered view, does not  flow from the language of the statutory provision.  Clause (i) of sub-section (1) of Section 103 provides that any final order passed  in  an  appeal  is available  to  be  challenged  in revision  by any person aggrieved by such order.  The  clear and  unambiguous  language in which the section  is  couched conveys the meaning that a revision petition cannot be filed against  an interlocutory order passed in an appeal.  To put it  differently,  an  order which does not  dispose  of  the appeal  is not a ‘final order.  An order of remand in which the  matter  is remanded to the Land Board for  disposal  in accordance  with  law cannot be said to be an  interlocutory order for the simple reason that the appeal filed before the Land  Tribunal stands disposed of by such order.  In a  case where  the  Land Tribunal keeps the proceeding  pending  and calls  for a finding on a specific issue or point formulated by  it from the Land Board or any other Authority, then such an  order cannot be said to be a final order against which a revision  can be filed before the High Court.  The reasoning in  some  of  the  Judgments  of  the  Kerala  High   Court, particularly in Bhaskara Menon v.  Gangadharan , (supra) and in  Joseph  Vs.   Velayudhan Pillai, (supra) that  a  final order  is one which disposes of the proceeding before  Land Board, in our view, is clearly erroneous.  The view taken by the High Court in 1979 Kerala Law Times 910 , Mahadevan Iyer Vs.  Bhagavaty Ammal is extracted:

     a  literal understanding of sub-section (i) of  S.103 only  means that there must be an appeal from an order  of the  land Tribunal and the appellate order should be a final one as distinguished from an interlocutory order.  The final order must dispose of the appeal.  The words final order in an  appeal  mean  only  that  and   this  is  all  that  is contemplated  by  the  Legislature will be  clear  from  the nature  of the appeals provided for under S.  102 of the Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

to  the  Appellate Authority.  An appeal will lie  from  any order passed by the Land Tribunal under the various sections enumerated  in S.102 .  Such orders may be either orders  of final  disposal  of  the proceeding taken  before  the  Land Tribunal   or   may  be   only  preliminary   orders   which conclusively  determine the status of the parties and direct incidental  enquiries  leading to a final order by the  Land Tribunal closing the poroceedings.  Such being the character of  the orders against which appeals can be filed before the Appellate  Authority  final  order  passed  in  an  appeal against  the order of the Land Tribunal in S.  103 (1)  (i) can  only  an  order finally disposing  of  the  proceedings initiated before the Land Tribunal.  Finality must relate to the  appeal  only and not to the Land Tribunal  proceedings. To  understand  or  to interpret the section to  mean  final order  disposing  of the Land Reform proceedings  on  appeal will be recasting the section which is not allowed,

     That view has our approval.  Therefore, the finding of the  High  Court  in  the impugned order  that  no  revision petition  could be filed against the order of remand  passed by  the  Land Tribunal is erroneous.  The first question  is answered  in  the negative.  Coming to the second  question, which  relates to the merits of the case, the High Court has discussed  in  detail, the facts and circumstances  emerging from  the  evidence  on record, which go to  show  that  the structure  in  respect  of which the  kudikidappu  right  is claimed  is  not a separate and independent  structure,  but only  an  appurtenant or adjunct of the shop room which  was previously  let out to the appellant.  In this connection it is relevant to note a few relevant provisions of the Act.

     Section  2  (25):  kudikidappukaran means a  person who has neither a homestead nor any land exceeding in extent three  cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or  township, in possession either as owner or as tenant, on which he could erect a homestead and-

     (a)  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

     (b)  who  has  been permitted by a  person  in  lawful possession  of  any  land  to  occupy  with  or  without  an obligation  to  pay rent a hut belonging to such person  and situate  in the said land;  and kudikidappu means the land and the homestead or the hut so permitted to be erected r or occupied together with the easements attached thereto.

     Section 80A, which is the provision regarding right of Kudikidappukaran  to  purchase  the  kudikidappu  rights reads as under:

        Right   of  kudikidappukaran   to   purchase   his kudikidappu:-  (1) Notwithstanding anything to the  contrary contained   in   any   law  for   the  time  in   force,   a kudikidappukaran  shall,  subject to the provisions of  this section, have the right to purchase the kudikidappu occupied by him and lands adjoining thereto.

     (2)  Notwithstanding anything contained in sub-section (1),  where  the total extent of land held by the person  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

possession  of the land in which the kudikidappu is situate, either  as  owner  or as tenant is less than one  acre,  the kudikidappu  and lands adjoining thereto only in cases where the   person  in  possession  of   the  land  in  which  the kudikidappu  is  situate  does not apply to  the  Government under  sub-section (3) of section 75 for the acquisition  of the  land to which the kudikidappu may be shifted, within  a period of two years from the commencement of the Kerala Land Reforms (Amendment) At, 1969:

     Provided that in a case where the person in possession has  applied  under  sub-section  (3)  of  section  75,  the kudikidappukaran   shall  be  entitled   to   purchase   his kudikidappu  and lands adjoining thereto if such application by  the  person in possession of the land is rejected or  if such  person  fails  to pay the expenses  for  shifting  the kudikidappu as required by sub-section (3C) of Section 75.

     (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 panchayat area or township:

     Provided that where the land available for purchase in 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  for purchase or, as the case may be, the land  in which the kudikidappu is situate.

     (4) xxx xxx xxx xxx

     (5) Where any person holds five acres or more of land, either   as  owner  or  as   tenant,  and  there  are   more kudikidappukars  than one in the lands held by him, each  of the kudikidappukars shall be entitled to purchase the extent of land specified in sub-section (3).

     (6)  No kudikidappukaran shall be entitled to purchase any land which is not in the lawful possession of the person who  holds  the land in which the kudikidappu is situate  or which is not within the boundaries of such land.

     Section  80B lays down the procedure for purchase by a kudikidappukaran.   Section 103, which provides for revision by  High  Court, lays down in sub-section (2) that the  High Court  may, after giving an opportunity to the parties to be heard,  pass  such orders as it deems fit and the orders  of the appellate authority or the Land Board, or the Taluk Land Board  as  the  case may be, shall, wherever  necessary,  be modified accordingly.  In sub-section (3), suo motu power is vested  in  the  High Court for the  purpose  of  satisfying itself that an order made by the Land Tribunal under Section 26 in cases where the amount of arrears of rent claimed does not  exceed  five hundred rupees was according to law,  call for  the records and pass such order with respect thereto as it thinks fit.  From the aforenoted statutory provisions, it is  manifest  that the power of revision vested in the  High Court  is wide and it is not limited only to question of law or  jurisdiction.  It hardly needs to be emphasized that the revisional power to disturb findings of fact or law recorded by  the  Land Tribunal or Land Board or Taluk land Board  as the  case  may  be, only in appropriate cases in  which  the Court  is  satisfied that such interference is necessary  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

the  interest of justice and for proper adjudication of  the dispute  raised  by the parties.  In the case on  hand,  the High  Court, as the impugned order shows, has taken note  of exception  to  the  order of the Land Land Tribunal  on  the ground  that it failed to take note of relevant factors like the  facts  and circumstances under which the structure  was allowed  to be constructed;  whether it was free or  subject to  payment  of  rent, the existence of  similar  structures erected  by the other tenant in the building and whether the structure  with respect to which kudikidappu was claimed was really  a  part  of the building which was let  out  to  the appellant  or  it was an independent or separate  structure. The  High Court has further observed that the Land  Tribunal decided  the case in favour of the appellant taking note  of only  one  factor, that there is a distance of about ¾ kole between  the two structures.  The High Court has also  found that,  even  though the building was referred to as  a  shop building  (originally), the appellant herein was residing in that  while  running  his motor pump repair  business  in  a portion,  even before constructing the lean  to or  charthu in  question.  On the basis of such facts and  circumstances appearing  from the evidence on record, the High Court  came to  the  finding  that the structure with respect  to  which kudikidappu  is claimed is not an independent structure;  it is  only  an  adjunct  or   appurtenant  to  the  shop  room previously  let  out  to  the   appellant.   The  facts  and circumstances  noted  in the impugned judgment are  relevant and  germane  for  the purpose of determining  the  question whether  the appellants claim that he is a kudikidappukaran with  respect  to  the  structure in question  and  as  such entitled  to purchase the property.The High Court cannot  be faulted  either  in fact or in law for having held that  the appellant  is  not  a kudikidappukaran with respect  to  the structure in question.

     In  conclusion, while vacating the finding of the High Court  that  no revision would lie against the order of  the Land  Tribunal  remanding the matter to the Land  Board  for fresh disposal, we are not satisfied that the impugned order dismissing  the proceeding before the Tribunal in O.A.   No. 50/1984  warrants  interference.  We make it clear that  our decision to reverse the finding on the maintainbility of the revision  petition  and overruling the contra view taken  by the  Kerala  High Court, for the reasons set forth  in  this Judgment, will have only prospective effect.  Any proceeding under  the Act which has been concluded and finally disposed of  by  the  Tribunal,  High Court or  any  other  competent authority  relying on the decisions of the Kerala High Court on  the  point  will not be re-opened on the  basis  of  the decision   rendered  by  us.    Accordingly  the  appeal  is dismissed, but in the circumstances of the case, without any order for costs.