K.K. Usha, J.

The question that is referred for consideration of the Bench is whether a kudikidappu as defined under S.2(25) of the Kerala Land Reforms Act, 1963 can come into existence after 1.1.1970. A Full Bench of this Court in Mary Yohannan v. Sreekumaran Nair, 1991 (2) KLT 751 has set at rest this dispute eight years back holding that a kudikidappu can come into existence even after 1.1.1970 and right to purchase kudikidappu rights is not restricted to persons who acquired the status of kudikidappukaran before 1.1.1970. The reference was necessitated since the learned counsel for the respondent brought to the notice of the learned Single Judge before whom the C.R.P. came up for hearing, a judgment of a learned Single Judge in Mohammed v. Abdulla,199 (1) KLT 410 which contains observations to the effect that no kudikidappu can come into existence after 1.1.1970.

2. We heard learned counsel for the revision petitioner as well as the respondent. The very same question came up for consideration before a Bench by way of reference in the year 1979. In Kunhimama v. Vasu, 1979 KLT 88, a Bench of this Court took the view that the mere fact that the kudikidappu sprang into existence only subsequent to 1.1.1970 would not disentitle the kudikidappukaran to the status or the privileges conferred by the Act, so long as the other conditions of the definition stand satisfied. While rendering the above decision, the Bench had the advantage of hearing learned Advocate General on the interpretation of the provisions contained under S.2(25) of the Kerala Land Reforms Act, 1963. Learned judges agreed with the two earlier decisions of this Court in Punishan v. Prakasan, 1977 KLT 10 and Padmanabhan v. Kunhalikutty, 1978 KLT 140, and over-ruled an earlier decision in Chacko v. Paul, 1974 KLT 743 which took a different view. The Full Bench in 1991 (2) KLT 751 supra took into consideration all the above referred earlier decisions and affirmed the decisions in 1977 KLT 10 and 1979 KLT 88, while holding that a kudikidappukaran who acquired the status of kudikidappukaran as defined under the Act, after 1.1.1970 would be entitled to all rights and privileges due to a kudikidappukaran, if he satisfies all the conditions contained in the definition clause.

3. We will now examine the decision of the learned Single Judge in 1997 (1) KLT 410. In the above case, the appellant-defendant contended that he had constructed the building in question on the basis of permission granted to him by the plaintiff and that since he would come within the definition of kudikidappukaran, plaintiff cannot claim recovery of possession of homestead from him. Trial Court as well as 1st Appellate Court found that there was no acceptable evidence to prove grant of any permission by the plaintiff. It was also held that defendant had not established that the building was constructed by the defendant Land Tribunal and 1st Appellate Court came to the conclusion that the building was not a but since the cost of construction could have exceeded Rs. 750/- and the rent it could have fetched would have exceeded Rs. 5/- per month on the relevant date. In second appeal, learned Single Judge was not inclined to interfere with the above-mentioned concurrent findings. In paragraph 4 of the judgment, it was observed as follows:

"In such a situation, there is no justification for this Court to interfere with the decree for recovery of possession granted by the Courts below especially when there is no dispute regarding the title of the plaintiff over the plaint schedule property".

After holding that on facts, the second appeal has only to be dismissed, learned judge went on discussing about the question whether right of kudikidappu can arise when the occupation commences after 1.1.1970. Reference was made to 1974 KLT 743,1977 KLT 10 and 1978 KLT 140. Quoting from a portion of the judgment in 1978 KLT 140, which is a Bench decision, learned Single Judge took the view that ratio of the above decision would negative the theory that a person not in occupation as on 1.1.1970, but who commences it thereafter, can also claim the right of kudikidapukaran. With great respect to the learned judge, we find it difficult to agree with him on the ratio of the decision in 1978 KLT 140. It was a case where when application was made for purchase of kudikidappu right under

S.80(B) of the Kerala Land Reforms Act, petitioner was in occupation of a but with permission on 1.1.1970. But, he was then disqualified to be a kudikidappukaran because he was having land exceeding the limit contained in S.2(25) on which he could erect a homestead. Later, he assigned the excess land and applied for purchase of kudikidappu under S.80B of the Act. The question that came up for consideration was whether, by such assignment after 1.1.1970, he can get rid of the disqualification and claim the status of kudikidappukaran. The Bench took the view that he cannot. It was observed as follows:

"It is immaterial whether a person who was a kudikidappukaran as per the definition as it stood prior to 1.1.1970 ceased to be one or a person who was not a kudikidappukaran as per that definition, became a kudikidappukaran from 1.1,1970becauseofthenewsub-s.25 substituted by the Amending Act 35 of 1969. The kudikidappukaran got the right to purchase his kudikidappu only by the Amending Act 35 of 1969 which was brought into force with effect from 1.1.1970. So it goes without saying that only one who was a kudikidappukaran as per the Act as it stood on 1.1.1970 will get a right to purchase his kudikidappu."

While holding that the ratio of the above mentioned decision is to the effect that no kudikidappu can be created after 1.1.1970, learned judge has quoted the above portion of the judgment. But, a reference to the remaining portion of the very same paragraph of the judgment in 1978 KLT 140 would make it clear that the Bench has not taken a decision that no kudikidappu can be created after 1.1.1970. The relevant portion reads as follows:

"If he was disqualified to be a kudikidappukaran because of the fact that he was having land exceeding the limit fixed by S.2(25) on which he could erect a homestead, he was not a kudikidappukaran on 1.1.1970. The further question is whether such a person can get out of the disqualification by assigning away the land afterwards. It is true that the Act does not prohibit the creation of kudikidappus. But that will not help a person like the petitioner. A person who ceased to be a kudikidappukaran can become a kudikidappukaran again only if he satisfies the conditions insisted by the definition. He should have again got permission to occupy the land or the but from the person in lawful possession of the land. With out that, he will not again become a kudikidappukaran even if he continued the occupation "

The above observation would clearly show that if the petitioner therein had obtained permission to can proceed and decide the suit accepting the decision of the Land Tribunal on the question referred to it as per provisions contained under sub-s.(5). The legal position being as above, we do not find any merit in the complaint of the respondent herein that the defendant in O.S. No. 766/96 did not put forward a specific prayer along with his written statement for referring the question of kudikidappu right. We are of the view that the question of kudikidappu very much arises in the light of the pleadings in this case and the trial Court should have referred the matter to the Land Tribunal. We cannot agree with the finding of the Trial Court that the question does not arise in this case.

5. In the result, we set aside the order passed by the Trial Court in I. A. No. 39 of 1998 and direct the Court below to refer the matter for decision of the Land Tribunal and stay the suit till a decision is obtained from the Land Tribunal.

The C.R.P. stands allowed as above. 17th June, 1999.