Krishnamoorthy Iyer, J.
1. The first defendant in O. S. 56 of 1962 on the file of the additional Munsiff's Court, Ernakulam, is the appellant. The suit is for recovery of the site on which the plaint B schedule building stands after its removal or in the alternative for recovery of the building on payment of its value.
2. The plaint A schedule which includes the site on which the plaint B schedule building stands belonged to Ananda Sankara Narayana Iyer who sold the same to Peter John. The latter conveyed his interest to the plaintiff.
3. On 3-11-1113 Kunian Marak-kar obtained permission from Ananda Sankara Narayana Iyer to put up the B schedule building which was originally a shop building. The first defendant purchased the building from Kunian Marakkar as per sale deed dated 25-4-1124 and is now residing in the building. The Courts below decreed the claim of the plaintiff overruling the plea of the defendant based on Section 75 of the Kerala Land Reforms Act, 1963 (Act I of 1964).
4. Counsel for the first defendant raised before us two contentions. (1) The first defendant is entitled to the benefit of Section 106 of the Kerala Land Reforms Act, 1963. and (2) The first defendant is a kudikidappukaran under Section 2 (25) of the said Act and therefore the decree for recovery of possession of B schedule building in favour of the plaintiff has to be vacated.
5. In view of the decision in Lakshminarayana Shetty v. Andunhi Beary, 1971 Ker LT 822 that a transferee from a lessee is not entitled to protection under Section 106 (1) of the Kerala Land Reforms Act. counsel for the first defendant did not press the first point.
6. We shall therefore take up for discussion the plea that the first defendant is a kudikidappukaran within the meaning of the Kerala Land Reforms Act, 1963. By Ext. P-4 Kunjan Marakkar was given permission only to put up a shop building for the purpose of conducting a trade in the plaint property. It is admitted by the first defendant that Kunian Marakkar had on the basis of Ext P-4 constructed only a shop building and was trading there. The plea of the first defendant is that after he obtained the transfer under Ext. P-5 he has been exclusively using the building for his residence since 1952 with the permission of D. W. 2 the then owner of the land. It has been concurrently found that there was no such permission from D. W, 2. The said finding was not challenged before us.
7. The question is whether in these circumstances the subsequent user of the shop building for residence of the first defendant without the consent of D. W. 2 will make him a kudikidappukaran within the meaning of Section 2 (25) of the Kerala Land Reforms Act. 1963. Since the decision in the case turns on the interpretation of Section 2 (25) of the Kerala Land Reforms Act, 1963 as amended by Act 35 of 1969 we shall extract the same:
' 'kudikidappukaran' means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and--
(a) who has been permitted with ox 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 hut belonging to such person and situate in the said land; and 'kudikidappu' means the land and the homestead or the hut so permitted to be erected or occupied together with the easement attached thereto:
Provided that a person who. on the 16th August, 1968, was in occupation of any land and the homestead thereon, or in occupation of a hut 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 hut. as the case may be, with permission as required under this clause.'
It is not necessary for the purpose of this case to repeat the Explanations to the above provision.
8. The attractive and Interesting submission of counsel for the first defendant is that in view of the proviso the first defendant should be deemed to have obtained the land with permission to construct a homestead. The point to be decided is whether the fiction created by the proviso to Section 2 (25) operates to this extent.
9. In S. A. 558 of 1961 (Ker) Velu Pillai, J. had to consider the question whether a subsequent revocation of the permission granted to have the use and occupation of the land for erecting a homestead will disentitle the licensee from claiming kudikidappu rights under the Act. The learned Judge found that no renewal of such permission is necessary from time to time and the subsequent revocation is immaterial in view of Section 2, Clause (25) of Act I of 1964. It is, no doubt, true that the learned Judge has not adverted to the specific part of the Section to draw his conclusion.
10. Almost an identical question was considered by Madhavan Nair. J. In Gopalan v. Chellamma, 1966 Ker LT 673 based on Section 2 (25) of Act I of 1964 before it was amended by Act 35 of 1969. We shall only extract Explanation II of Section 2 (25) before it was amended by Act 35 of 1969 as it is not necessary to repeat the main part of the Section which was substantially the same as the one now in force:
'Explanation II,-- Any person who was in occupation of a 'kudikidappu' on the 11th day of April, 1957, and who continued to be in such occupation at the commencement of this Act, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause.'
Madhavan Nair, J. took the view that apart from the initial permission contemplated by Section 2 (25) it is necessary for the claimant to prove that his occupation till 11th day of April 1957 was with the permission of the landlord and the fiction regarding the permission can operate only from 11-4-1957.
11. Krishna Iyer, J. had to interpret the proviso to Section 2 (25) of Act I of 1964 as amended by Act 35 of 1969 in Mariam v. Xavier, 1971 Ker LT 709. It is enough for us to quote the head-note of the decision which is in these words:
'Running right through all the benignant enactments relating to kudi-kidappus is a striking feature, that protection is given only to those who have built and/or entered huts with the permission of the one lawfully in possession.'
But Subramonian Poti, J. In S. A. No, 1345 of 1967 (Ker) after a very elaborate discussion doubted the correctness of the decision of Krishna lyer, J, and made some observations which are no doubt obiter. The learned Judge said:
'I am also again unable to read the proviso as clarifying the meaning of the definition contained in the main clauses in Section 2 (25). While the earlier clause requires permission in order to claim to be a kudikidappukaran, the proviso embodies a legal fiction enabling any person to invoke that fiction so as to presume permission which is required to satisfy the definition and that is necessarily the function of the proviso.
Therefore. I am of the view that any person who is in occupation of any land and the homestead thereon on 16th August 1968 or is in occupation of a hut belonging to any other person on that day and continues to be in such occupation on 1-1-1970 would be deern-e'd to be in occupation of such land and homestead or hut as the case may be with permission as required under Clause (a) or (b) of Section 2 (25), as the case may be, and in that event he will be a kudikidappukaran. Had this case rested on the decision of this question I would have referred this case to a Division Bench of this Court in view of the different approach to this question by my learned brother.' (the reference being to the decision of Krishna lye'r, J. cited by us).
We have to point out at the outset that the question mooted before us is not free from difficulty.
12. The proviso introduces a legal fiction- A person claiming the benefit of the proviso has to prove that he was in occupation of the land and the homestead thereon or he was in occupation of the hut referred to in Clause (b) on the 16th day of August. 1968 and he must also prove that he has been continuing in such occupation on the date of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). Explanation II to Section 2 (25) defines' 'homestead' and 'hut'. It reads:
'For the purooses of this clause.--
(a) 'hut' means any dwelling house constructed by a person other than the person permitted to occupy it--
(i) at a cost, at the time of construction, not exceeding seven hundred and fifty rupees; or
(ii) which could have at the time of construction yielded a monthly rent not exceeding five rupees, and included any such dwelling houses reconstructed by the kudikidappukaran in accordance with the provisions of Section 79; and
(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, and includes any such dwelling-house reconstructed by the Kudikidappukaran in accordance with the provisions of Section 79.'
The point to be considered is when a person proves the conditions stated in the proviso whether the initial permission contemplated by Section 2 (25) (a) and (b) can be presumed. To apply the proviso there should be a kudikidappu. According to Section 2 (25) a kudikidappu means the land and the homestead erected by the person to whom permission is given under Clause (a) or the hut occupied under the terms of Clause (b). A person claiming to be kudikidappukaran has therefore to prove that the homestead which is occupied by him was erected by him on a land given to him for that purpose or that his occupation of the hut was given to him as stated in Section 2 (25) (b). The proviso does not relieve the occupant of this burden.
13. Had it not been for the proviso it may be necessary for the occupant to prove the continuance of the permission referred to in Clauses (a) and (b) till 16th day of August. 1968. The effect of the proviso is only to overcome the legal consequences arising from the termination of the licences granted for purposes mentioned in Clauses (a) and (b) by the owner of the land or by a person in lawful possession of the same. The proviso operates only to the extent of deeming the continuance of the permission or licence. In our view, a person wanting to take advantage of the proviso has to establish that there is a hut within the meaning of Section 2 (25) (a) read with Explanation II (a) and also his occupation during the period mentioned in the proviso. Similarly a person wanting to take advantage of Section 2 (25) (b) must satisfy the requirements thereof read with Explanation n (b) and also that he was in occupation for the period mentioned in the proviso. To excuse a person on the basis of the proviso from proving the ingredients of Section 2 (25) (a) or (b) will be to set at naught the effect of the Section Itself. Such an interpretation of the proviso should as far as possible be avoided.
14. The permission granted in the case before us is only to construct a shop building. There was no permission granted to use the same as a homestead. In these circumstances, the proviso cannot help the first defendant.
15. We, therefore, dismiss the appeal but without costs.