The central legal point established in the judgment is that for a person to qualify as a 'kudikidappukaran' entitled to protection under the Kerala Act, it is necessary for the hut to 'belong' to the person who granted permission for occupation.

V.P. Gopalan Nambiyar J.

This appeal, under S.5 of the Kerala High Court's Act, is against the judgment of a learned Judge of this Court in Second Appeal No. 269 of 1960. The matter arises out of a proceeding in execution of the decree in O. S. No. 56 of 1957 on the file of the Munsiff's Court, Parappanangadi. The appellant before us was the 6th Defendant in the suit which was one for redemption of a mortgage. He was one of the persons who had been permitted by the mortgagee to occupy a hut in the mortgaged property. It has been found, and the finding is not now open to question that the hut belongs to the mortgagor. The appellant contended that he was a 'kudikidappukaran' entitled to protection under the Kerala Act VII/1963. The contention was rejected by the learned Judge against whose judgment this appeal has been preferred.

2. The same contention has been repeated before us with respect also to the provisions of the Kerala Act 1/1964 and of Act V/1969. We agree with the learned Judge that under the definition of the term 'kudikidappukaran' under Act VII/1963, while permission to occupy the hut may be granted even by a person in lawful possession of any land and therefore by the mortgagee it is necessary that the hut must 'belong' to the person who granted the permission. The appellant, therefore, was rightly held by the learned Judge not to satisfy the definition of the term 'kudikidappukaran' under the Kerala Act VFI/1963. Explanation I to the said definition enacts a rule of presumption as to lawful permission arising from continuous occupation from and after a specified date for a specified period, but it does not dispense with the requirement that the hut must 'belong' to the person permitting occupation.

3. The position has in no wise been altered by the statutory enactments which have since followed. S.2 (25) of Act 1/1964, in so far as it is relevant reads:

"2 (25) 'kudikidappukaran' means a person who has neither a homestead nor any land, either as owner or as tenant in possession, on which he could erect a homestead and

(i) 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

(ii) 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", but otherwise has no interest in the 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:"

The requirement that the hut must 'belong' to the person who permitted occupation is not dispensed with; and Explanation II to the section, which is practically in the same terms as the Explanation to the definition in Act VIII/1963 does not improve the position.

4. It was said that Act V of 1969 has effected a change. We are clear that it has not S.2 (vii) of the said Act, defines 'kudikidappukaran'. As the definition is unduly long, we are reproducing only the material part of it.

"2 (vii) "kudikidappukaran" means a person who has neither a homestead nor any land exceeding five cents in extent, either as owner or as tenant in possession on which he 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 occupation of land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land, but otherwise has no interest in the 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:

Provided that a person who. on the 1st day of April 1967, was in