Kerala High Court
Meenakshi G. Nayak vs Srimad Anantheshwara Temple, … on 10 June, 2026
R.S.A. No.199 of 2026 1 2026:KER:41946
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 10
TH DAY OF JUNE 2026 / 20TH JYAISHTA, 1948
RSA NO. 199 OF 2026
AGAINST THE JUDGMENT AND DECREE DATED 14.10.2025 IN A.S. NO.8
OF 2023 OF SUB COURT, KASARAGOD ARISING OUT OF THE JUDGMENT AND
DECREE DATED 25.01.2023 IN OS NO.431 OF 2004 OF PRINCIPAL MUNSIFF
COURT, KASARAGOD
APPELLANT(S)/APPELLANTS IN A.S.08/2023/
DEFENDANTS 2 TO 4 IN O.S. 431/2004 :
1 MEENAKSHI G. NAYAK
AGED 68 YEARS
W/O. LATE GIRIDHAR NAYAK,
RESIDING AT 66,
6TH FLOOR, MAKER CHAMBERS-6,
NARIMAN POINT, MUMBAI,
PIN - 400021
2 SEETHARAM NAYAK
AGED 43 YEARS
S/O. LATE GIRIDHAR NAYAK,
RESIDING AT 66,
6TH FLOOR, MAKER CHAMBERS-6,
NARIMAN POINT, MUMBAI,
PIN - 400021
3 DEEPIKA NAYAK, AGED 42 YEARS
D/O. LATE GIRIDHAR NAYAK,
RESIDING AT 66,
6TH FLOOR, MAKER CHAMBERS-6,
NARIMAN POINT, MUMBAI,
PIN - 400021
BY ADVS. SHRI.B.KRISHNAN
SHRI.R.PARTHASARATHY
SRI.PAUL MATHEW (PERUMPILLIL)
SRI.N.A.RETHEESH
R.S.A. No.199 of 2026 2 2026:KER:41946
RESPONDENT(S)/RESPONDENT IN A.S.08/2023/
PLAINTIFF IN O.S.431/2004 :
SRIMAD ANANTHESHWARA TEMPLE,
MANJESHWAR, REPRESENTED BY THE PRESIDENT
OF COUNCIL OF TRUSTEES G, RATNAKARA KAMATH,
HOSABETTU VILLAGE, POST MANJESHWAR,
MANJESHWAR TALUK, KASARAGOD DISTRICT,
PIN - 671323
BY ADV SRI.KODOTH SREEDHARAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
10.06.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No.199 of 2026 3 2026:KER:41946
"C.R"
EASWARAN S., J.
-----------------------------
R.S.A. No.199 of 2026
-------------------------------------
Dated this the 10th day of June, 2026
JUDGMENT
A short but vexatious question has arisen for consideration in this
appeal. Can a tenant under a contract of tenancy claim rights of a
kudikidappukaran on the strength of a contract of tenancy for 11 months
entered in the year 1985. The claim rests on the strength of a Division
Bench decision in Maniyan Vs Ramachandran [1999 (3) KLT 86].
2. Brief facts for disposal of the case are as follows:
The plaintiff temple had given the plaint schedule property on lease
to the father of the 1st defendant (original defendant in the suit) on
1.4.1963. It is stated that the lease was for agricultural purposes. Whether
the lease got demised or not is not indicated from the pleadings. It
appears that on 19.8.1985, the parties executed a fresh contract of tenancy
for a period of 11 months. The rent fixed was Rs.165/-. Thereafter, the
defendant continued in possession beyond the contractual lease period
and thereby became a tenant holding over. The plaintiff had requested the
defendants/appellants to vacate the premises on several occasions, which
R.S.A. No.199 of 2026 4 2026:KER:41946was not heeded to. Since the tenants refused to vacate the premises, the
landlord issued a notice demanding them to vacate the premises and
thereafter filed a suit for recovery of possession.
2.1. In the suit, the defendants raised multiple pleas, including the
one touching upon the sustainability of the lease deed dated 19.8.1985,
and went on to the extent of contending that the said lease is not valid
inasmuch as it was executed with coercion and undue influence.
Alternatively, a plea for protection of the kudikidappu rights of the
defendants under the provisions of the Kerala Land Reforms Act, 1963,
was also raised. This necessitated a reference under Section 125(3) of the
Kerala Land Reforms Act before the jurisdictional Land Tribunal as R.C.
No.2 of 2007. The Land Tribunal answered the reference, holding that the
petitioner therein (original defendant) is not entitled to get the protection
of a kudikidappukaran under the provisions of Section 2(25) of the Kerala
Land Reforms Act, 1963. The answer was accepted by the trial court.
Incidentally, a plea was raised by the defendants that the value of the
house at the time of construction was estimated by the advocate
commissioner at Rs.725/- and therefore they are entitled to get the
protection under the Kerala Land Reforms Act, 1963. The trial court did
not accept the report of the advocate commissioner fixing the value at
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Rs.725/-, but then proceeded to non-suit the appellants on other grounds
also. Aggrieved, the appellants preferred A.S. No.8 of 2023 before the Sub
Court, Kasaragod. One of the main grounds raised against the judgment
of the trial court was that it could not have differed from the report of the
Advocate Commissioner, who fixed the value at Rs.725/-, and that it
further erred in taking into account the value of the construction made by
the tenants while computing the value of the building as on 1.1.1970.
However, the plea was not accepted, and the first appellate court also
concurred with the findings of the trial court, rejected their contentions.
Hence the present appeal.
3. Heard Sri. B. Krishnan, the learned counsel appearing for the
appellants, and Sri. Kodoth Sreedharan, the learned counsel appearing for
the respondent/plaintiff.
4. Since, at the request of learned counsel for the appellants, the
substantial questions of law were reframed, this Court must decide two
issues:
a) whether the appellants are building tenants entitled for
protection under the Kerala Building (Lease and Rent Control)
Act, 1965?
b) whether the courts below were justified in non-suiting the
R.S.A. No.199 of 2026 6 2026:KER:41946appellants in their plea for protection of the ‘kudikidappu’
rights.
5. Before that, this Court must also address a pivotal issue
regarding the entitlement of the appellants to get protection under the
provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965.
6. Sri. Kodoth Sreedharan, the learned counsel appearing for the
respondent, points out that by virtue of the notification, G.O. (MS)
No.59/93/Hsg dated 19/11/1993, Srimad Anantheshwara Temple, is
exempted by the Government from the purview of the provisions of the
Kerala Buildings (Lease and Rent Control) Act, 1965. Therefore, the claim
for protection under the Kerala Buildings (Lease and Rent Control) Act,
1965, fails.
7. What remains is the claim for protection of the kudikidappu
rights under the provisions of the Kerala Land Reforms Act, 1963. It must
be remembered that a claim for protection as building tenant and a claim
for kudikidappu rights under the Kerala Land Reforms Act, 1963 is
mutually destructive. But, Shri B. Krishnan, the learned counsel contends
that a claim for kudikidappu can arise after 1-1-1970 and therefore, the
appellants are entitled to raise this claim. Accordingly, this Court proceeds
to examine the claim.
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8. What is projected before this Court is that, though a contract of
tenancy has come into force on 19.8.1985, still the appellants are entitled
to the protection of their kudikidappu rights. In support of his contention,
Sri. B Krishnan, the learned counsel appearing for the appellants
extensively relied on the Division Bench decision of this Court in
Maniyan v. Ramachandran [1999 (3) KLT 86] and also the view
expressed by the learned Single Bench of this Court in Vidhyadharan v.
Sivadas [2001 (2) KLT 605]. He further pointed out that merely because
the tenant failed to get his rights registered under Section 80 of the Kerala
Land Reforms Act, 1963, will not ipso facto denude the rights of the
tenant. In support of his contention, the learned counsel relied on the
decision of the Supreme Court in Madhavi Amma and Others v. S.
Prasannakumari and Others [AIR 2013 SC 1384].
9. Before this Court proceeds to consider the contention, it must be
noted that to sustain the claim for kudikidappu, the tenant must satisfy
the conditions specified under Section 2(25) of the Kerala Land Reforms
Act, 1963. Section 2(25) reads as under:
(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 – [Substituted by Act No.35 of
R.S.A. No.199 of 2026 8 2026:KER:419461969.]
(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 or occupied
together with the easements attached thereto:]
[***] [Substituted by Act No. 17 of 1972.]
10 . Explanation II to Section 2(25) of the Kerala Land Reforms Act,
1963, postulates two situations:
1) The cost at the time of construction should not exceed
Rs.750/-
2) That, at the time of construction, the building should not
yield a monthly rent of exceeding Rs.5/-.
11. Pertinently, Section 74 of the Kerala Land Reforms Act, 1963,
prohibits the creation of tenancy after the coming into force of the Act.
Therefore, a larger question that may arise for consideration is that, in the
case of a building tenant who enters into a contract of tenancy for eleven
(11) months, can he still claim protection of a kudikidappukaran under
Section 2(25) of the Kerala Land Reforms Act, 1963?
12. Before this Court answers the question, it must decide whether
the Division Bench decision in Maniyan (Supra) is applicable to the
R.S.A. No.199 of 2026 9 2026:KER:41946
facts of the case. A reading of the decision shows that the question which
came up for consideration was whether a tenant who had kudikidappu
rights which he lost before 1-1-1970 due to the operation of the statute
could still claim such rights provided he satisfied the conditions
prescribed under the Act. The reference was necessitated because a
learned Single Judge in Mohammed v. Abdulla [1997 (1) KLT 410] held
that a tenant cannot claim kudikidappu rights after 1-1-1970.
13. Answering the reference, the Division Bench held that in case
where the kudikidappu rights were lost because of the fact that the land
in possession of tenant exceeded the limits under Section 2(25) and once
he assigns the excess land after 1-1-1970, still he can claim the benefit
since the right to claim the benefit came into force by the amending Act
35 of 1969 w.e.f 1-1-1970. The reference was thus answered, and the
revision petition was disposed of, directing the trial court to refer the claim
to the Land Tribunal.
14. In this case, though, a fervent attempt is made by the defendants
to trace their possession under the 1st defendant, it is indisputable that in
the year 1985, a contract of tenancy was entered into. It must be borne in
mind that a right of kudikidappu will arise only if the occupant enters vide
a gratuitous permission to a homeless person to occupy a hut/land. Such
R.S.A. No.199 of 2026 10 2026:KER:41946
a right must have accrued prior to 1-1-1970. Post 1-1-1970, a claim for
kudikidappu can arise only if other conditions are satisfied. But it is
mandatory that the right must have been accrued to the tenant prior to
1-1-1970, since after 1-1-1970 no fresh tenancy can be created because of
the bar under Section 74 of the Kerala Land Reforms Act, 1963.
15. The decision in Maniyan (Supra) cannot be construed as one
conferring a right to a person to claim kudikidappu based on a contract of
tenancy entered after the introduction of Section 74 of the Kerala Land
Reforms Act, 1963. When there is a statutory bar against the creation of a
tenancy, it is futile for the appellants to claim the rights conferred under
the Kerala Land Reforms Act, 1963, based on a void tenancy. Still further,
a claim for kudikidappu under the Kerala Land Reforms Act cannot arise
based on a contract of tenancy executed after the coming into force of the
Act. Such a question never arose before the Division Bench and hence the
decision cannot be the authority for the proposition canvassed in this case.
16. It must be remembered that the appellants do not dispute the
creation of a fresh tenancy in the year 1985, which was for 11 months.
A 11-month contract of tenancy agreement executed in 1985 is a
commercial leasehold agreement, creating a legal landlord-tenant estate.
The impact of the agreement can be twofold: i) if it is interpreted as
R.S.A. No.199 of 2026 11 2026:KER:41946
creating rights on the tenant, then it is hit by Section 74 of the Kerala Land
Reforms Act; and ii) if it is interpreted as a commercial building lease, it
falls within the ambit of rent control laws.
17. Since the appellants claim under the tenancy agreement
executed in the year, 1985, they must be pinned down to the terms of the
contract and cannot claim a right under the Kerala Land Reforms Act,
1963, since the creation of fresh tenancy is prohibited under law. The
prohibition under the Kerala Land Reforms Act, 1963, is an indication that
in order to claim the protection of kudikidappu rights, the same must have
arisen based on an arrangement prior to 1-1-1970 and not otherwise.
18. That apart, one cannot dispute the fact that the purpose of the
Kerala Land Reforms Act, 1963 was to bring about larger agrarian
reforms. To hold that, even in a case of a contract of tenancy, the
contractual tenant would get the benefit of the Kerala Land Reforms Act,
1963, would completely obliterate the purpose of the enactment, and also
the contract entered into between the parties concerned.
19. Still further, the plea now raised will lead to an incongruous
situation where after entering into a contract of tenancy and also getting
an exemption under the provisions of the Kerala Building (Lease and Rent
Control) Act, 1965, the landlord, namely the temple in question, would
R.S.A. No.199 of 2026 12 2026:KER:41946
face a situation where it would have yield its higher proprietary rights over
the property to a tenant who has been put in possession in pursuance to a
contract and that the tenant would get his rights elevated to that of a
kudikidappukaran thereby completely denuding the landlord his
proprietary rights over the property. Whether the provisions of the Kerala
Land Reforms Act, 1963, envisage such a situation? The answer to this
question must be in negative.
20. Though, the learned counsel for the appellants extensively relied
on the decision of the Division Bench in Maniyan (Supra), this Court is
of the considered view that the Division Bench never dealt with the
question whether a person who comes into possession of a building
pursuant to a contract of tenancy, could claim kudikidappu rights.
Therefore, this Court is persuaded to hold that when a tenant came into
possession of the building in question for a particular period of eleven (11)
months and then continued to overstay in the building and refused to
vacate the building even on repeated requests of the landlord, cannot turn
around and contend that he is entitled for protection of his rights as a
kudikidappukaran under Section 2(25) of the Kerala Land Reforms Act,
1963.
21. That apart, even for a moment, this Court assumes that the
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appellants can be permitted to raise a claim for protection of kudikidappu
rights under the Kerala Land Reforms Act, the said right is qualified by
two conditions as provided under Explanation (II) :
a. That the value of the building should not exceed Rs.750/-
b. That the monthly rent should not exceed Rs.5/-
22. In the present case, admittedly, the value of rent is fixed at
Rs.165/-. Therefore, what remains to be seen is whether the appellants are
able to substantiate that at the time of construction, the value of the
building was less than Rs.750/-.
23. Though, Sri. B Krishnan, the learned counsel for the appellants,
extensively took this Court to the report of the advocate commissioner,
and contended that the value of the building was noted as Rs.725/-, this
Court is not persuaded to accept it. But then, the said report did not find
favour with the trial court. The trial court had its own reasons to disbelieve
the report of the advocate commissioner based on the evidence adduced
by the landlord, including the cost of construction prevailing during the
period in which the building was constructed. When the above finding is
rendered on the basis of appreciation of evidence, which does not appear
to be perverse to this Court. Thus, the plea of the appellants that the value
of construction of the building is less than Rs.750/- is not supported by
R.S.A. No.199 of 2026 14 2026:KER:41946
any cogent evidence. That be so, it is inevitable for this Court to hold that
the courts below have rightly declined the plea of the appellants for
protection of the kudikidappu rights under Section 2(25) of the Kerala
Land Reforms Act, 1963. On that count also, the appeal must fail.
24. Resultantly, the substantial questions of law are answered as
follows.
i) In view of the notification issued by the State Government in
exercise of the powers under Section 25 of the Kerala Buildings ( Lease
and Rent Control) Act, 1965, exempting the plaintiff temple from the
purview of the Act, the appellants are not entitled for any protection as
building tenants.
ii) Since the appellants came into possession as tenants pursuant to
a contract of tenancy in the year 1985, they are not entitled to claim
kudikidappu rights under Kerala Land Reforms Act, 1963.
Accordingly, the appeal fails, and the same is dismissed. No order
as to costs. Ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
NS
