The judgment establishes the principle that a tenant who fails in a S.72-B application can still maintain an application under S.80-B for purchase of kudikidappu, but the principle of constructive res judicata may apply in certain circumstances.

K.A. Abdul Gafoor, J.

The defendant, who was defeated in a suit for recovery of possession of B Schedule building, assailing the concurrent decree rendered against him.

2. The plaintiffs are admittedly the owners of the building in their occupation. The building is situated in 9 cents of land. They claimed rights as cultivating tenants and filed application under S.72-B of the Kerala Land Reforms Act. That was dismissed as seen from Ext. Al and Ext. Al had been confirmed by the appellate authority as seen from Ext. A2. Finally that was upheld in Ext. A3 by this Court. The suit was filed after Ext. Al order. The suit was resisted contending that Ext. Al was being appealed against and the same was pending. It was also contended without prejudice to that, that the defendant is a kudikidappukaran in respect of the building mentioned in the plaint. He is entitled to purchase kudikidappu right in paragraph 7 of the Written statement.

3. The trial court found that there was no reason for reference of the issue to the Land Tribunal as enjoined in S.125(3) of the Kerala Land Reforms Act as he had been defeated in an application for purchase of the landlord's right under S.72-B of the said Act. It was also found, based on the evidence as follows:

"...It stands proved that the suit house was constructed by the plaintiffs themselves by spending more than Rs. 4000/- at that time. It is also in evidence that that house is a tiled one having 3 rooms. The roof of that house is made up of good timber. The plaintiffs had used 1500 tiles and 1000 laterite stones for its construction, and even at the time of its construction in early 60s it was worth a minimum rental of Rs. 12/- per month."

The defendant attempted an appeal mainly on the ground that as there was a plea of kudikidappu, it ought to have been referred, notwithstanding the finding in Ext. Al regarding tenancy under S.72 of the Act to the Land Tribunal. The lower appellate dealt with that contention and held that,

"having contended earlier that he is a cultivating tenant under Act 1 of 1964 and having failed in that attempt, he cannot now turn around and take a different legal status viz. kudikidappu right since the two being distinct and different having different characteristics".

4. Aggrieved by this judgment this Second Appeal is filed mainly raising a substantial question of law as to whether the finding rendered in S.72-B application will disentitle the tenant to claim a lesser right under S. SOB to claim kudikidappu in respect of the very same kudikidappu holding. The trend of the decisions as contained in Karthiayani Pilla v. Appi Pennu Mathu (1965 KLT 1212), Manni v. Moithu & Ors. (1973 KLT 20), Kunhi Moideen Hajl v, Andi & Ann (1964 KLT 225) and S. Appukuttan v. T. Janaki Amma (AIR 1988 SC 587) is to the effect that a cultivating tenant can claim kudikidappu as well. It had been held in Muhammed Kunhi v. AbdulkaderHaji (1992 ILR 79) by this Court that a tenant who failed in an application under S.72-B can very well maintain an application under S.80-B for purchase of kudikidappu. It is true that this Court in Kamalakshi Amma v. Vijayan (1988 (2) KLT 498) which was confirmed by the Supreme Court in Vijayan v. Kunhulakshmi Amma (1994 (1) KLT 942) has held that after having agitated one right, in a reference before the Land Tribunal, the tenant cannot later put up another plea of tenancy under S.106 of the Kerala Land Reforms Act. That was based on the principle of constructive res judicata that the tenant ought to have raised all the pleas of defence at one time. The tenancy coming under S.72 and kudikidappu as defined in S.2(25) which is in detail dealt with in Ss.80 and 80-B are coming within Chapter II of the Kerala Land Reforms Act touching the use and occupation of the land with or without building. In such circumstances, it may be possible for a tenant who lost the application under S.72-B to maintain another one under S.80-B. The principle of constructive res judic