1. The defendants in O. S. No. 51 of 1969 of the IInd Additional Sub Judge's Court, Trivandrum are the appellants and the plaintiff therein is the respondent The respondent instituted a suit to set aside the order dated 31-5-1968, Ex. A8 passed in execution in O.S. 134 of 1952 of the same court on an application moved by the respondent to remove the obstruction of the appellants to the delivery of the property pursuant to the decree therein. That suit was one for partition and in the final decree the plaint items here as well as a larger extent of land had been allocated to the plaintiff decree-holder therein and the respondent herein is the assignee of that decree.

2. Two of the prayers in the present plaint were that it should be declared that the appellants were not kudikidappukars under the Kerala Land Reforms Act 1963 and that it should be held that the property scheduled to the plaint is liable to be recovered in execution of the decree in O.S. No 134 of 1952. The plaint property has been described as part of the property allotted to the plaintiff in O. S. No. 1:4 of 1952 in which buildings T C. 11/640 and 11/641 are situate and 10 cents of land including the site of those buildings as also 71/2 links of the building T. C. 11/630 and that part of the property on which that portion of the building in T.C. 11/630 is situate.

3. It was contended by the appellants that they were not liable to be evicted and that the order Ext. A8 is not liable to be set aside. The first defendant, the first appellant laid claim to the buildings T. C. 11/640 and T.C. 11/641 and the 10 cents of land including the site of those buildings. His case was that he came into possession of the buildings in the site referred to, in 1952. The second defendant claimed kudikidappu right regarding the building T. C11/630.

4. The court below found that the first defendant came into possession only in or after 1958, on the basis of Ext. A24, a document executed by one Bronkhurst who was the defendant in O. S.134 of 1952. It also found that the interests created and transferred by Ext. A 24 cannot avail against the plaintiff in O.S. 134 of 1952 because the transfer was vitiated by the rule of lis pendens. It was further found that the first defendant cannot be termed to be a kudikidappukaran. The claim of the second defendant was also negatived on the ground that the permission alleged by him was also vitiated by the rule of lis pendens.

5. When the case came up before a Division Bench of this court, the following order of reference has been passed.

"This appeal raises an important question regarding the scope and interpretation of Explanation II-A to S.2 (25) of the Land Reforms Act (Act 1 of 1964). Counsel for the appellant has attacked the correctness of the Division Bench ruling of this Court in Chinnan v. Gopinathan (1975 KLT 50) on the ground that the Division Bench proceeded on the assumption that the Explanation unless read and understood in a particular way would be unconstitutional and void, as offending Art.19(1) (f) of the Constitution. Counsel for the appellant pointed out that the Division Bench did not notice, and its attention was not drawn to, the fact that Act 17 of 1972 which enacted the explanation had also been included in the Ninth Schedule to the Constitution by the thirty fourth amendment dated 7-9-1974 which was before the decision by the Division Bench. This aspect of the matter apart, the question whether the Explanation can cut d own the ambit of the definition itself raises an important question. We direct that notice be issued to the learned Advocate General to assist the Court in resolving the controversy, and settle the true scope and effect of Explanation II-A."

6. Counsel for the appellants did not seriously challenge before us the finding of the court below that the first defendant came into possession only on or after 19-8 under Ext. A 24 There is ample evidence in the case to support the finding of the court below on