Occupation with permission is essential for claiming kudikidappu right under S.2 (25) read with the proviso. Occupation as a trespasser does not entitle one to claim kudikidappu rights.

Headnote:
Trespasser - Recovery of Possession - S.2 (25) (b) of Act 1 of 1964 as amended by Act 35 of 1969 - [S.2 (25) (b)] - The court discussed the definition of 'kudikidappukaran' and the requirements for claiming kudikidappu right under S.2 (25) read with the proviso. It emphasized that initial occupation with permission is essential, and occupation as a trespasser does not entitle one to claim kudikidappu rights.
Fact of the Case:

The appellant, the fourth defendant, was held to be a trespasser in a suit for recovery of possession. The appellant sought immunity from eviction under S.2 (25) (b) of Act 1 of 1964 as amended by Act 35 of 1969.
Finding of the Court:

The court found that the appellant, even if a trespasser, was not entitled to immunity from eviction under S.2 (25) (b) as the occupation as a trespasser did not fulfill the requirements for claiming kudikidappu right.
Issues: The main issue was whether the appellant, as a trespasser, was entitled to immunity from eviction under S.2 (25) (b) of the amended Act.
Ratio Decidendi: The court emphasized that the occupation with permission as contemplated by Explanation II is essential for claiming kudikidappu right under S.2 (25) read with the proviso. It held that occupation as a trespasser does not fulfill the requirements for claiming kudikidappu rights.
Final Decision: The court dismissed the second appeal, holding that the appellant was not entitled to claim rights as a kudikidappukaran and ordered the appellant to pay costs.

Judgment :-

1. The fourth defendant in a suit for recovery of possession on the strength of title is the appellant, the plaintiff being the respondent. The courts below have held that the appellant is a trespasser; and on that basis, they have also granted a decree in favour of the respondent for recovery of possession. The second appeal is against that decision. After Act 35 of 1969 amending Act 1 of 1964 came into force, the appellant filed the civil miscellaneous petition seeking leave for raising an additional ground in the second appeal; and we allow the same. The question thus raised is the only question we have to consider in the second appeal; and the question is whether, even if the appellant is only a trespasser, be is entitled to immunity from eviction, in view of S.2 (25) (b) of Act 1 of 1964 as amended by Act 35 of 1969.

S. 2 (25) defines "kudikidappukaran". The clause reads: "kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent three cents in any city in possession either as owner or as tenant.

on which be could erect a homestead and.

(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 but belonging to such person and situate is the said land; and "kudikidappu" means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto:

Provided that a person who, on the 16th August, 1968, was is occupation of any land and the homestead thereon, or in occupation of a but belonging to any other person, and who continued to be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969. shall be deemed to be in occupation of such land and homestead, or but, as the case may be, with permission as required under this clause.

Explanation II: For the purposes of this clause:

(a) "hut" means any dwelling house constructed by a person other than the person permitted to occupy it:

xx x x

(b) "homestead" means, unless the context otherwise requires, any dwelling house erected by the person permitted to have the use and occupation of any land for the purpose of such erection.

The argument is that, since it is now found that the appellant was in occupation of the but on 16th August 1968 and continued to be in such occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, he must be deemed, by virtue of the proviso, to be in occupation with permission as required under sub-clause (b) above.

2. After this case has been referred to a Pull Bench, the decision in Vareeth George v. Achuthan Sivadasan (1972 KLT. 107) has been rendered by a Division Bench; and the same question appears to have been considered by the Division Beach in the said decision. The correctness of the said Division Bench ruling has naturally been questioned before us; and in so doing, one or two observations of this Court in other decisions, which do not appear to have been considered by the Division Bench, have also been brought to our notice. For instance, in Mohammed Kunju v. Devaki Amma (1966 KLT. 79), a learned judge has observed:

"Possibly if the question arises, this Court might hold as the courts below have assumed-that the word "Kudikidappu" is used in the Explanation not in the sense in which it is defined but as dispensing with the element of permission."

The same learned judge has said in an order of reference in Ulahanuan v. Jaya-raja Menon (S.A. No. 454 of 1967) that the decision of another learned judge in Gopalan v. Chellamma (1966 KLT. 673) required reconsideration. In this reference order also, the learned judge has referred to his earlier decision which we have referred to already. As we have already indicated, these two obser

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Judicial Analysis