V.P. Gopalan Nambiyar, J.
1. Both the courts below found that the case of benami set up by Defendants 1 and 2, (who are the appellants in this second appeal) in regard to Ext. P-4 sale-deed relating to 5 cents of the suit property, and Ext. P-5 gift-deed in respect of the remaining 10 cents of the property, had not been substantiated. I am in agreement with the said finding, with which there is no scope for interference in second appeal. The result is that in respect of the 15 cents of suit property, Pathrose, the predecessor-in-interest of the plaintiff-respondent had title.
2. The only other question is whether the plaintiff who derived title from Pathrose had shown possession within 12 years of the suit. The suit was instituted on 25-3-1963. Pathrose sold the 15 cents of land to which he was entitled to P. W. 3, the father of the plaintiff-respondent, by Ex. P-2 dated 4-10-1951. The contention of the appellants is that even long prior to the sale, Pathrose had been out of possession of the property, that the appellants were in possession in their own right, and therefore the rights of Pathrose have been barred by adverse possession and limitation. In appreciating this contention, it should be remembered that Ext. P-5 gift-deed was in respect of a total extent of 20 cents of property, the northern half of which was to be taken by Defendants 1 and 2, and the other, the southern-half by Pathrose. The appellants and Pathrose, were thus clearly tenants in common. The property had not been demarcated or divided by metes and bounds into two equal halves. It is difficult, and indeed impossible, in the circumstances to find that Defendants 1 and 2 who occupied the undemarcated portions of the property conveyed under Ex. P-5 were thereby in adverse possession against Pathrose the predecessor of the plaintiff-respondent. No overt act of assertion of their own rights by Defendants 1 and 2 in respect of Pathrose's portion of the property was alleged, or attempted to be made out. Much the less was it shown that such acts of possession were exercised to the knowledge of Pathrose or his successors.
3. That the trial court found that Pathrose and Defendants 1 and 2 were in joint possession and that the appellate court found that the latter were not in constructive possession on behalf of Pathrose, does not really effect the question. It is also significant that the written statement of Defendants 1 and 2 stated that Pathrose lived in this property along with Defendants 1 and 2 till his death in 1957. The finding of the courts below that the plaintiff had title and possession was correct.
4. Counsel for appellants contended that the appellants were entitled to claim rights as 'kudikidappukars' in the property. This case is based on the fact that in the southern half which was conveyed to Pathrose under Ex. P-5, and which is the subject-matter of the suit, the 2nd Defendant has put up a hut and has been living there with his family. The definition of kudikidappukaran under the Kerala Act 1 of 1964 in as far as it is material reads:
'2 (25). '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 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 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 easements 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.'
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The claim in this case cannot be based on Clause (b), because the hut does not 'belong' to the person who permitted the occupation but has been put up by the appellants or one of them. The claim is therefore based on Clause (a). It is difficult to accept this claim on the proved circumstances of this case. For the one thing, despite the appeal having been disposed of by the lower appellate court only in 1967, after the coming into force of Act 1 of 1964, no plea that the appellants, or either of them, were entitled to kudikidappu rights was raised before the lower appellate court. The material part of the definition of 'kudikidappukaran' under Act 1 of 1964, prior to its amendment by Act 35 of 1969 remains practically the same as it is at present. There was explanation II even then, which stated that a person in occupation of a kudikidappu on the 11th day of April 1957 and who continued to be in such occupation at the commencement of the Act shall be deemed to be in occupation of the kudikidappu with the permission required by the definition clause.
Apart from the infirmity arising from the absence of any plea in the lower appellate court, on the contentions of the parties and the proved facts, the plea appears manifestly unacceptable. The appellants have throughout been contending, right up to this second appeal, that they had been in possession of the suit property adversely to Pathrose and his successors. That plea having been found against, for them to turn round and to say that they must be deemed to be in possession with the permission of Pathrose seems to be to blow hot and cold. I do not think that the proviso extracted earlier would help the appellants to presume that their occupation was with the requisite permission from the fact that they were in possession on the 16th August 1968 and continued to be in such occupation at the commencement of Act 35 of 1969. For, as I understand the proviso, what it enacts is, that the fact of possession at the relevant date and the continuance of possession being established, and nothing more appearing, it shall be deemed that the occupation was with the permission as required by Section 2 (25). But if, in addition to the occupation on the specified date and the continuance thereafter, we have the proved fact that the occupation is claimed to be adverse to the person whose permission is sought to be availed of for the purpose of claiming kudikidappu rights, it is difficult to fill the requirements of the definition of 'kudikidappukaran'. In the circumstances, I am unable to accept the plea that the appellants are entitled to claim kudikidappu rights.
5. I dismiss this Second Appeal, but make no order as to costs.