Occupation for kudikidappu right must be in one's own right, not by virtue of a right vested in another. The nature and character of occupation are crucial in determining kudikidappu rights.

1. The plaintiff in O. S. No. 876 of 1967 of the Second Additional Munsiff's Court, Trivandrum, is the appellant. Defendants 1 to 4 in the suit are the respondents. The suit was filed for removal of trespass and for recovery of the property scheduled to the plaint. The property scheduled to the plaint is a small portion about 4 cents in Survey Nos. 970 and 971, and the relief sought for is for recovery of about half a cent therein. The property belonged to one Subramonia Pillai. He sold it to Vaikundam Pillai on 5-10-1955. There was an agreement between Vaikundam Pillai and the plaintiff to purchase about 9 cents of land including the plaint property. This led to the filing of O. S.203 of 1957 by the plaintiff for specific performance against Vaikundam Pillai. He thereafter obtained conveyance through court as a result of Ext. A5 judgment dated 18-11-1963 in A. S. No. 1037 of 1959 of the High Court. The plaintiff obtained possession on 15-10-1968. This suit was filed just prior to the said recovery of possession of the property scheduled in p. S. No. 203 of 1957, for the small portion in Sy. Nos. 970 and 971. Earlier, the 1st defendant immediately after the sale by Subramonia Pillai to Vaikundam Pillai on 5-10-1955, filed O. S.11 of 1956 (Ext. BI) in the District Court, Trivandrum against Subramonia Pillai, Vaikundam Pillai, the plaintiff herein and others. In the said suit, the Ist defendant herein contended that Subramonia Pillai was not competent to alienate the property since he had agreed to give the property to the 1st defendant and her children. That suit was dismissed for non-prosecution. Alleging that the 1st defendant trespassed into the property on 4-11-1955 the suit was laid for recovery of the small portion in Sy. Nos. 970 and 971.

2. The defendants resisted the suit, the 1st defendant claiming independent title. She contended that her father constructed the building in pursuance to permission given by Subramonia Pillai's father. They pleaded that they were in occupation of the building several years before the suit and the plaintiff's title, if any, is lost by adverse possession. Defendants also claim kudikidappu rights and claimed protection

against eviction.

3. The trial court accepted the plaintiff's title. The plea of limitation and adverse possession of the defendants was rejected. The suit was decreed, finding that the defendants unlawfully trespassed into the plaint property as mentioned by the plaintiff. The defendants filed A.S. 624 of 1972 before the District Court, Trivandrum. The appellate court held in favour of the plaintiff regarding title, and also negatived the defendants' plea of limitation and adverse possession. But the appellate court was of the view that the 1st defendant is residing in the plaint schedule property with permission and that the schedule building is a hut. She was treated as kudikidappukari and it was declared that she is not liable to be evicted. The plaintiff has come up in Second Appeal.

4. Counsel for the appellant, Mr. S. Narayanan Poti, assailed the reasoning and conclusion of the lower appellate court in holding that the 1st defendant is a kudikidappukari and so not liable to be evicted. The lower appellate court relied on Exts. BI, B2 and B3 to find that the residence of the 1st defendant in the schedule building started on permission and not on trespass and that she is entitled to the kudikidappu rights. Ext. BI is the plaint in O. S. No. H of 1956 dated 25-1-1956. Ext. B2 is the copy of the written-statement of the 7th defendant therein (plaintiff in this suit, dated 9-3-1956). Ext. B3 is the copy of the written-statement of the 2nd defendant in that suit, Vaikundam Pillai. According to the appellant's counsel, the legal requirement of "kudikidappu" as enjoined by the Statute was lost sight of by the lower appellate court and the three documents. Exts. BI, B2 and B3, have been mis-interpreted and mis¬understood in material particulars to find against the pla