1. This is an appeal by the plaintiff against the decrees of both the Subordinate courts in so far as they relate to dismissing his suit for recovery of possession of the suit property described as Sy. No. 1069 of the Mattancherry Village. The suit, among other reliefs was also for recovery of the site on which a hut or a homestead appears to be existing and the recovery was sought for of the site after removal of the building or after paying the necessary compensation in respect of the building..
2. The events that have led up to this litigation are these: There was originally a lease in favour of one Kannappan. According to the plaintiff, this Kannanpan, who was in possession of the property as a lessee, appears to have inducted into possession his niece one Bhavani in or about the year 1118, who in turn on the basis of this permissiongiven by Kannappan as lessee has put up a buildingon the property.
In Thulam 1119, as evidenced by Ext. VI, there has been an assignment of the rights in respect oi this building by Bhavani in favour of one George, who in turn under Ext. VII of the year 1951 has unsigned it in favour of the first defendant. The second defendant is the husband of the first defendant and the third defendant is a mortgagee of the item, in pursuance of the mortgage executed by the first defendant alone.
3. The suit was contested on the ground that the plain till was not entitled to get an eviction of the site after removal of the building and protec-tion was also claimed by the parties on the basis that the first defendant is a kudikidappukaran entitled to protection by virtue of the Cochin Proclamation, 18/1122. There are also certain other defences raised in respect of the rate of rent and damages claimed by the plaintiff. The plaintiff appears to have claimed at the rate of Rs. 5 a month, whereas the defendants contended that they are liable to pay only at Re. 1-8-0 per year. The third defendant was satisfied with contending that from and out of any amounts that may be payable to the defendants as compensation his mortgage claim should be satisfied.
4. The learned District Munsiff of Cochin, who went into the matter in the first instance has come to the conclusion that Bhavani was inducted into possession of the site by the lessor Kannappan her uncle, and that she accordingly put up a building in 1118. The trial court was not prepared to ac-eept the claim made by the plaintiff for getting damages or rent at the rate of Rs. 5 per month. On a consideration of the material evidence, the trial court was prepared to decree in favour of the plaintiff only a sum of Re. 1-8-0 as representing the entire arrears till the date of suit and future arrears at the rate of Rs. 2 per month.
5. The trial court also came to the conclusion that, on the basis of the report of the Commissioner appointed in the case, if the plaintiff was entitled to get a decree for eviction, the first defendant is entitled to get compensation in the sum of Rs. 456-6-3. But on the question as to whether the plaintiff is entitled to get a decree lor eviction in the face of Cochin Proclamation 18 of 1122, the trial court went into the matter rather elaborately and came to the conclusion that notwithstanding the fact that the first defendant is only a transferee from a transferee from the original owner, namely, Bhavani, the first defendant is entitled to get the protection given to Bhavani, under Proclamation 18 of 1122.
The reasoning of the learned Munsiff appears to be based on a certain decision on this point given by some Additional District Judge of Anjikaimal District. It was of the view that there was no legal impediment in the way of Bhavani transferring her kudikidappukaran's right in favour of originally George and later on in favour of the first defendant herself. In this view the trial court was of the opinion that the terms of the Cochin Proclamation 18 of 1122 provides an effective answer in respect of the relief of eviction claimed by the plaintiff. Ultimately the trial court apart from giving a decree for arrears of rent and for future rent and declaring the amount of compensation regarding the building payable, if an eviction is to be granted, dismissed the plaintiff's suit for eviction on the basis of the provisions of Proclamation 18 of 1122.
6. There was an appeal by the plaintiff to the learned Additional District Judge of Anjikaimal against the decree of the trial court disallowing the eviction as prayed for by him. There appears tohave been also a memorandum of cross objections tiled by the lirst defendant regarding certain minor matters, namely, the rate oi rent decreed against her, and also tile value ot improvements fixed by the Commissioner. The learned Additional District Judge of Anijkaimal has ultimately come to the conclusion that Proclamation 18 of 1122 is applicable to the present case and that the plaintiii is not entitled to evict the first defendant from the plaint site.
7. Regarding the other objections raised by the first defendant on the question ot arrears of rent and the rate of future rent and also regarding the value of improvements the learned Judge was of the view that no interference was called for on those points. In consequence, the learned Judge dismissed the appeal filed by the plaintiff regarding the disallowance of the prayer for eviction, with an observation that the dismissal of the appeal will not in any way prejudice the plaintiff from instituting, a properly framed suit under the provisions of Travancore-Cochin Act, 13 ol 1955, and the memorandum of cross objections tiled by the first defendant was also dismissed.
8. The subject matter of the memorandum of cross objections tiled by the first defendant has become final and it is not the subject oi any controversy also in this second appeal. It is really the plaintiff that has filed this appeal against the decrees of both the courts disallowing the relief asked for by him, namely, the prayer for eviction of the iirst deiendant from the suit site.
9. The question is whether the appellant is entitled also to a decree for eviction as prayed for by him.
10. On behalf of the appellant, Mr. E. V. Mathew, learned counsel, contended that the judgment oi the learned Judge is lull of mistakes and that shows that the learned Judge has not eared to advert to the actual evidence on record and the admissions of the defendants themselves in these proceedings. I will advert to them a little later. On the point of law, the learned counsel contended that at the time when the appeal was being disposed of, Cochin Proclamation 18 of 1122 had ceased to be in force and the Act then in existence was Travan-core-Cochin Act 13 of 1955 and the learned Judge erred in not acting in accordance with the principle that subsequent legislation coming into force pending a lis even in an appellate stage should be given effect in disposing of the appeal and the reliefs to be granted to the parties must be granted limited in the light of the new enactment.
11. The learned counsel has taken me through some other subsequent statutes which have come into operation and contended that under Act 13 of 1955 and Kerala Act 1 of 1957 as amended by Kerala Act 30 of 1958, a party in the position of the first defendant in these proceedings is not entitled to any protection as a kudikidappukaran. On the other hand, Mr. Kumaran, learned counsel appear-ing for the contesting-defendant respondent, has attempted to support the reasoning and conclusions of both the subordinate courts. According to the learned counsel, the only question that the two courts had to consider was as to whether the suit for eviction was maintainable in view of the total prohibition contained in Cochin Proclamation 18 of 1122.
Therefore the two courts were perfectly correct in coming to the conclusion that the first defendant is a 'kudikidannukaran' on titled to protection by virtue of the definition contained in Cochin Verumpattomdars Act, 8 of 1118, and that she is entitled to the protection given by the Proclamation referred to above. The learned counsel has alsocontended that even under the new legislationnamely, T. C. Act 13 ol 1955 and the later enactments, his clients are entitled to the protection as kudikidappukars. I will deal with the contentions of the learned counsel on both sides based upon the particular definition of the terms as contained in the new enactments alter I give a scheme of the entire legislation beginning from Cochin Act 8 of 1118.
12. Before I do so, it is desirable that I deal with the several mistakes committed by the learned Judge in his judgment. The trial court rightly or wrongly, came to the conclusion that a transferee from a transferee from a kudikidappukaran will also be entitled to protection on the basis of Cochin Act 8 of 1118 read with Cochin Proclamation 18 of 1122. The trial court had specifically come to the conclusion, on the evidence adduced by the defendants themselves that Bhavani constructed a building on the suit property in 1118, on the basis of the permission given, not by the plaintiff, who was the owner of the property, but by the lessee Kannappan, who is none else than her own uncle.
This finding is really based upon the evidence of Kannappan himself who figures as Dw. 1 and who had given evidence on the side of the defendants. It was nobody's case at that time that the plaintiff had given permission to Bhavani for putting up a building in the suit property. In paragraph 4 of the judgment of the lower appellate court where the learned Judge considers this matter I have been able to find that out of 34 lines nearly 32 sentences therein are either mis-statements or incorrect statement of facts. It is really on the basis of this incorrect and wrong assumptions that the learned Judge finally comes to the conclusion.
'From the above circumstances I am inclined to hold that Bhavani put up the building in ques-tion with the consent of the owner, the plaintiff. Mr. Kumaran was at considerable pains to satisfy me that the reasoning contained in paragraph 4 of the judgment of the learned Judge was really supported by evidence on record. On the other hand, none of those reasons or the findings or the statements contained therein are in any way supported by the evidence on record. In fact, they are totally opposed even to the case set up by the defendants themselves.
Before I point out these mistakes I shall mention a few dates. The plaintiff appears to have instituted O. S. 349 of 1116 in the Cochin Munsiff's Court for evicting Kannappan, who was the lessee of the properties and that suit was instituted on 20-5-1116. There was a decree in his favour on 20-5-1122 evidenced by Ex. C and plaintiff actually got possession of the properties on 8-8-1122 in execution of this decree. Therefore, it will be scon that the plaintiff actually gets possession of the properties from the lessee Kannappan only in 1122, after a decree in his favour was passed on 20-5-1122. I have already mentioned that the finding of the trial court is to the effect that Bhavani has been inducted into possession by her uncle, the lessee, in or about 1118 and that the building has been put up by her at that time. In fact, this finding, as I mentioned earlier, is based upon the evidence of Kannappan himself to the effect that he gave permission to Bhavani to put up the building and that the building wos put up in 1118. In fact, it is also seen from paragraph 5 of the trial court's judgment that the plaintiff's case also was and he seems to have also admitted -- that the building was put up in the year 1118. While these are the facts, the finding of the learned Judge in appeal is that Bhavani put up tho building on the suit property after the plaintiff got possession under tho decree in O.Section 349 of 1116. This, to say the least, is not the case of anybody and is totally opposed to the evidence recorded in this case.
Again, the learned Judge says that there is no evidence showing whether Bhavani obtained the permission of the plaintiff, the owner, or the permission ot lessee Kannappan tor erecting a homestead. This is a mistake and a misappreciation ot the evidence because Kannappan's evidence is to the effect that it was he who gave permission to his niece Bhavani, to put up a building. Then again, the learned Judge says that it is significant to note that in the plaint the plaintiff does not say that Bhavani was not given possession by plaintiff for erecting a homestead nor does he clearly say that such permission was granted to Bhavani by Kannappan. I am not able to find what exactly the learned judge has in mind because it is the case of the plaintiff that he never gave permission to Bhavani. On the other hand, his case has been that Bhavani hay been given permission only by tho lessee in possession.
Again, the learned Judge says that the decree in O. S. 349 of 1116 was obtained by the plaintiff against Kannappan for eviction and it is alter termination of the suit that Bhavani was allowed to erect the homestead in the suit property. This again is a very erroneous statement, as will be clear from the dates mentioned by me earlier. Tho plain-tiff obtained the decree in O. S. 349 of 1116, evidenced by Ext. C only on 20-5-1122. There is already the admission of Dw. 1 to the effect that the building has been put up by Bhavani in 1118. The learned Judge is prepared to close his eyes to some of the material evidence on record and record a wrong finding that the plaintiff allowed Bhavani to erect a homestead in the suit property.
I do not think it necessary to spend more time over the several mistakes committed by the learned Judge in the course of his judgment. I have pointed out some of the very serious mistakes and I will stop. It is really on the basis of these circumstances, which according to the learned Judge, exist, in this case that he comes to the conclusion that Bhavani put up the building in question with the consent of the plaintiff. It is clear that such a finding, based upon no evidence in this case, cannot be supported or accepted by me.
13. Then the question is whether the plaintiff is entitled to get an eviction of the defendants from the suit site. This depends upon the interpretation of some of the statutes namely, Cochin Verumpat-tomdars Act 8 of 1118, Cochin Proclamation 18 of 1122, Travancore-Cochin Act 13 of 1955, Kerala Act 1 of 1957 and Kcrala Act 30 of 1958. I shall consider some of the provisions of these statutes so that tlie contentions ol the learned counsel on both sides may be better appreciated.
14. Before I go again into the scheme of these enactments, I may also consider the other question, namely, that when the appeal was pending in the lower appellate court that court should have proceeded on the basis, not of Cochin Proclamation 18 of 1122, which had become dead by that time but really on the basis of the living Act, Travancore-Cochin Act, 13 of 1955. The present suit was filed on 17-2-1953 and the judgment of the trial court was delivered on 5-3-1954. The learned District Munsiff was perfectly right in considering only the scope of Cochin Verumpattomdars Act, 8 of 1118, and the prohibition contained in the Cochin Proclamation 18 of 1122.
As to whether his views based upon that Act and Proclamation regarding the protection given to the first defendant is correct or not, is a totally different matter. But the position is totally changed when the appeal was disposed of by the appel-late court. The appellate court disposed of this appeal on 28-7-1956. At that time, Proclamation 18 of 1122, which gave protection to kudikidappukars, has been abrogated and a new legislation had come into force namely, Travancorc-Cochin Act 13 of 1955. The question is whether the learned Judge was correct in not applying the provisions of this Act. In my opinion, Mr. Mathew is well founded in his contention that the new legislation must have been applied so as to mould the reliefs to be granted by the court.
I am not able to accept the contention of Mr. Kumaran, learned counsel appearing for the contesting respondents, that even the appellate court was only bound to consider the one and only question, namely, the provisions of Cochin Proclamation 18 of 1122. This matter need not detain me any further because I have myself held in some of my decisions in this court, that subsequent legislation must be taken into account even at the appellate stage to mould the relicts to be granted by the court. There is also a decision of Sankarun and Joseph, JJ., reported in Kunjukrishnan v. Krishna Pillai, 1958 Ker LT 645: (AIR 1959 Kerala 38) where the learned Judges, if I may say so with respect, have very ex-haustively considered this question and come to the conclusion that the appellate court is not limited to determine the question whether the original court was right in granting reliefs according to the law in force at the time of its judgment.
The appellate court may pass such decree, as is in accordance with any later enactment, which came into operation subsequent to the said date. The only decree that could be passed on the date of the appellate judgment is under the legislation that governs the parlies as on that date. Applying the principles laid down by the learned Judges also in my view, the learned Additional Judge went off the tract in not even considering the applicability of Act 13 of 1955 and basing his decision, and even that wrongly, on Cochin Proclamation 18 of 1122. In my opinion, the direction given to the appellant referring him to another properly constituted suit as per the provisions of T. C. Act, 13 of 1955 was totally unnecessary and really would result in a waste of time and unnecessary expense to the parties, whereas the matter could be very satisfactorily disposed of in these proceedings themselves.
15. Now I will consider the enactments that have got a bearing on the subject matter in dispute. I may preface my discussion by saying that it may not really be necessary to consider now the scope or ambit of either Cochin Verumpattomdars Act 8 of 1118 or Cochin Proclamation 18 of 1122 because the latter has now ceased to have any force. But for the purpose of completing the narration of the events, I shall advert to them very briefly. The relevant provision which requires to be noticed is the definition of kudikidappukaran in Section 2, clause (a) of Act VIII of 1118 which runs as follows;
'Kudikidappukaran' means a person who has been permitted to have the use and occupation of a property for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given'. Again, Kudiyiruppu is defined in clause (b) of Section 2 of the said Act:' 'Kudiyirippu' means the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and the eascments attached thereto'.
It will be seen that the definition of 'kudikidap- pukaran' in this Act, does not give any indicationas to the person who should have granted the permission to have the use and occupation of the property for the purpose of erecting a homestead. According to the wide definition contained in this enactment, it may be contended that even a lessee or other person in possession oi property is entitled to grant this right and it is not necessary that the owner alone should grant the said right. But this controversy is not now relevant, as I said, because this expression has been later defined in a different way in later enactments. There is no protection as such given or declared to a kudikidappukaran or person in occupation of a kudiyiruppu in Act 8 of 1118.
It may be noted also as mentioned by Mr. Mathew that the definition of verumpattomdar in clause (d) ol Section 2 of this Act specifically excludes a kudikidappukaran from that definition. The statute which really gives some protection to kudikidappukaran is the Cochin Proclamation staying suits etc. against Kudikidappukars, namely Cochin Proclamation 18 of 1122, which canie into force on 18-10-1122. The said proclamation is to the effect leaving -- unnecessary matters -- that no suit for eviction shall he instituted against a kudikidappukaran and that all suits filed on or after the 5th of Vrischikom 1122 corresponding to 20th November 1946, appeals, reviews, revisions, decrees and applications in execution in respect of such suits seeking eviction of kudikidappukars pending in the courts, shall so far as they relate to the prayer for eviction are to be stayed.
16. There is an explanation in this Proclamation to the effect that the term 'kudikidappukaran' for the purpose of the said Proclamation is to have the meaning of that expression as defined in Section 2(a) in the Cochin Verumpattomdars Act, 8 of 1118. Therefore, it comes to this namely, that protection is given to kudikidappukars who come within the definition of that term in Act 8 of 1118 and that protection is given by virtue of this Proclamation. As I meantioned earlier, the trial court's view was that even an assignee from a kudikidappukaran is entitled to protection on the basis of this Proclamation. It appears to have been accepted before, the trial court on behalf of the plaintiff that Bhavani comes within the definition of kudikidappukaran and she would have been entitled to protection on the basis of this Proclamation.
17. As I am not accepting the contention of Mr. Kumaran that even the appeal should have been disposed of on the basis of this Proclamation, read with Cochin Verumpattomdars Act, 8 of 1118, it now becomes necessary for me to consider the scope of the three subsequent enactments which have come into force. As I mentioned earlier, the appeal was disposed of by the learned Judge on 28-7-1956. In between the date of the decree of the trial court, namely, 5-3-1954, and the date of the judgment of the appellate court, namely 28-7-1956, comes into force the new legislation, namely, Travancore-Cochin Act 13 of 1955, namely, the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act. This effects some radical changes in the definition of kudikidappukaran. Section 2, clause (c) of this Act gives the definition of kudikidappukaran and it also defines a kudiyirippu in the same sub clause:
' 'Kudikidappukaran' means a person who has no homestead or land of his own to erect a homestead and has been permitted by an owner of land to have the use and occupation of a portion of the land for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given; and 'kudiyirippu' means the site so given together with the house, hut or shed thereon which is used as a place of residence by theKudikidappukaran with the permission of the owner'.
Again, under clause (d) of Section 2 a 'landholder' has been defined as follows:
' 'Landholder' means a person who is entitled to be and is in possession and enjoyment of a parcel of land or holding whether as owner, mortgagee, lessee or otherwise'.
Clause (e) defines the expression 'owner' as follows:
' 'Owner' means a person who is entitled to the absolute proprietorship of land and includes, in the case of land of which superintendence has been assumed by the Court of Wards under the Travan-core Court of Wards Act, 1110 or the Cochin Court of Wards Act, XIII of 1097, the Collector or the Tahsildar, as the case may be'.
18. Section 4 of this Act provides that kudiki-dappukars are to have permanent right of occupancy in kudiyirippus and it states that subject to the pro-visions or this Act every kudikidappukaran who is at the date of the commencement of this Act in occupation of a kudiyirippu to which this Act applies and who may thereafter be permitted by an owner or any other land-holder with the owner's consent to be in occupation of a kudiyirippu to which this Act applies is to have permanent right of occupancy of such kudiyirippu and is not to be evicted except in accordance with the provisions of the Act. It also provides that such permission or consent referred to in that sub-section shall be in writing and registered. Sub-clause (2) of Section 4 is to the effect that
'Every Kudikidappukaran who is at the date of commencement of this Act in occupation of a kudiyirippu to which this Act applies shall be deemed to be in occupation of such kudiyirippu with the permission of the owner'.
19. There are three other provisions which re-quire consideration, namely, Sections 6, 12 and 14. Section 6 provides that
'The interest of a Kudikidappukaran in his kudiyirippu shall be heritable but not alienable'. Section 12(i) requires the Government to have registers of kudikidappukars maintained in each village containing several particulars mentioned in that subsection. Clause 2 of Section 12 again directs
'Every kudikidppukaran who is in occupation of a kudiyirippu at the commencement of this Act, shall apply to the Village Officer of the village where, tie resides to be registered as such within one year from the date of the commencement of this Act. Failure to apply within the period allowed shall entail forfeiture of the rights under this Act'.
Admittedly, even if any of the defendants are entitled to the protection of that Act, they have not effected the necessary registration and as such, even assuming they had any rights, they have forfeited all these rights by virtue of the application of the provisions of Sub-section (2) of Section 12. Section 14 of the Act repeals the Travancore Prevention of Eviction Act, 1124, namely, Travancore Act 22 of 1124, and the Cochin Proclamation, 18 of 1122. That is why I mentioned that it becomes unnecessary to consider who are the persons sought to be brought in under the definition of kudikidappukaran mentioned in the Cochin Proclamation 18 of 1122 which in turn refers for the definition of that expression to Act 8 of 1118.
20. It will now be seen that under the clefini-tion of kudikidappukaran as contained in Travan-corc-Cochin Act 13 of 1955 it is now necessary that before a person claims protection under this definition, he must be (a) a person who has no homestead or land of his own to erect a homestead and (b) hemust have been permitted by an owner of land to have the use and occupation of the land for the purpose of erecting a homestead. The other part of the definition, namely with or without an obligation to pay rent, is immaterial. Again 'Kudiyirippu' means the site given by the owner of the property together with the house, hut or shed which is used as a place of residence by the kudikidappukaran with the permission of the owner.
One thing that emerges from the definition contained in clause (c) to Section 2 is that apart from other ingredients, the owner must have given permission to a person to erect a homestead in the one case and must have given permission to the kudikidappukaran to live in the site so given to him together with the house. The owner again is defined as mentioned in clause (e) of Section 2. Therefore, in order to satisfy the test of a kudikidappukaran a party must be able to establish that he conies within all the tests laid down by that definition.
21. Section 4 gives protection to such kudikidappukars who are on the date of the commencement of that Act in occupation of a kudiyirippu, namely, on 7-6-1955. One other feature of Section 4 is that it gives also a further protection to persons who may be thereafter permitted by an owner or even by a land-holder, which term has been defined in clause (d) of Section 2, with the consent of the owner, to be in occupation of a kudiyirippu. Ultimately that section emphasises that the permission or consent should be in writing and registered. Therefore, very strict and stringent conditions have been imposed under Section 2, Clause (c) read with Section 4 of Travancore-Cochin Act 13 of 1955.
22. It is the contention of Mr. Mathew that even Bhavani herself, namely, the person who was let into possession by the. lessee, will not satisfy the tests of a kudikidappukaran as defined in Clause (c) of Section 2 of the Travanco re-Co chin Act. On the other hand, Mr. Kumaran has laid considerable stress on Sub-clause 2 of Section 4 to the effect that even persons in the position of Bhavani and the transferees like the first defendant in this case have been given protection by this enactment. According to Mr. Kumaran, a kudikidappukaran who is entitled to protection under this Act and who is in possession of a kudiyirippu at the date of the commencement of this Act is to be deemed to be in occupation of the kudiyirippu with the permission of the owner.
According to Mr. Kumaran, the object of this sub-clause is to extend the protection even to persons who may have been admittedly put in possession of a land by a tenant or other persons apart from an owner himself. The learned counsel has also relied upon the interpretation to be placed upon the expression 'shall be deemed to be' and has relied upon the decision of the Privy Council reported in Commissioner of Income-tax, Bombay v. Bombay Trust Corporation, AIR 1930 PC 54. The interpretation of the expression 'shall be deemed to be' as explained by their Lordships of the Privy Council is, incontrovertible. But the question is whether the interpretation sought to be placed upon sub-clause (c) by Mr. Kumaran can be accepted.
If the contention of Mr. Kumaran that notwithstanding the fact that a restricted definition has been given by the Act in clause (c) of Section 2, Section 4(2) of the Act really confers protection, even on persons who do not satisfy that definition and who have been put in possession of property even by others for the purpose of constructing a homestead is accepted it will, in my opinion, entirely go beyond the scheme of the Act and the protection sought to be conferred by the Act. Sub-section (2) of Section 4 itself starts by saying 'every kudikidappukaran who is at the date of commencement of this Act'. Forunderstanding who are the persons to be consider-ed to come within this expression one is bound to look up to the definition which is contained in the same enactment.
It is one of the cardinal rules of interpretation that when there is a definition clause, that governs the use of that expression throughout the Act unless there is anything to show that a different connotation was intended i'or the term. In my view there is nothing at all in this Act which will in any way support the contention of Mr. Kumaran that subsection (2) of Section 4 was intended to benefit even persons, other than those who will come within, the definition of the term kudikidappukaran as defined in clause (c) of Section 2. In my opinion, all parts of the statute have to be reasonably read and no violence should be done to the language ot the enactment. Applying the test contained in the definition of kudikidappukaran contained in Section 2 clause (c) in my opinion the only interpretation that could be placed upon Sub-clause (2) ot Section 4 is that the legislature takes in alf those cases of persons who would have been in possession of a portion of the property and who have constructed buildings or other homesteads on a portion of the property in the actual possession of the owner.
By virtue of that long possession they may not be able to establish by direct evidence that they or their predecessors in interest have obtained consent from the owner. Then again, the legislature must have in view those cases where express permission of the owner as such may not have been taken, but the owner may have been aware of the existence of other people's homestead on his land and who would not have taken any objection to that or allowed them to continue. In my opinion, it is only such types that may be contemplated by sub-s. 2 of Section 4. It stands to reason that the object of the enactments, being to protect kudikidappukars who have put up homesteads in the lands in the possession of the owners, this is another method of giving protection to persons, who could not by efflux of time, or by otiier circumstances really place evidence about the consent given by the owner as is required by the definition of that term in clause (c) of Section 2.
To accept the contention of Mr. Kumaran that this sub-clause contemplates persons who have been put in possession not only by the owner, but by even usufructuary mortgagees or tenants or lessees, in my opinion, would be to go far beyond the scheme of the Act itself. In fact, it will be doing violence to the entire scheme of the Act because the legislature having given protection to a particular type of people who come within the definition of the term kudikilappukaran and having laid down the necessary ingredients for that term in clause (c) of Section 2, the legislature would not have intended to extend the scope of that definition by incorporating sub-clause (2) of Section 4.
Therefore, in my opinion, it is not possible, to accept the contention ot Mr. Kumaran that persons who have been allowed to construct homesteads on lands, other than by owners arc also sought to be given protection under Sub-clause (2) of Section 4. Section 4, clause (1) really provides for this contigency also but it also gives the necessary facts to be established, before a person who has been put in possession of a property by a person other than an owner could claim protection under clause 1 of Section 4. It is not necessary for me to consider the further scope of clause (1) of Section 4. The other two enactments that have followed this are Kerala Act 1 of 1957 and Kerala Act 30 of 1958 amending the definition of the term 'kudikidappukaran' in Act 1 of 1957.Section 2, clause (3) of Act I of 1957, defines Kudikidappukaran as follows:
' 'Kudikidappukaran' means a kudikidappukaran as defined in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes any person in occupation of a hut (whether constructed by him or not) in any portion of a land belonging to and in the possession of another and who has been permitted by the latter to occupy that hut, but otherwise has no interest in the land'. Clause (4) of Section 2 defines Kudiyirippu:
' 'Kudiyirippu' means a Kudiyirippu as defined in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act 1955, and includes a hut occupied by the Kudikidappukaran'.
The definition of kudikidappukaran in Act I of 1957 refers to the definition contained in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, 1955 which I have just now considered and it aiso extends the definition so as to include certain other persons, which is not really necessary tor me to consider. Again the definition ot Kudiyirippu is also related to the definition of that expression in Travancore-Cochin Act 13 of 1955. Kerala Act 30 of 1958 incorporated a new definition. In Section 3 of the Amending Act the new definition of the term Kudikidappukaran is as follows:
' 'Kudikidappukaran' means a person who has no homestead or land of his own to erect a homestead and,
(i) who has been permitted with or without an obligation to pay rent by an owner of land to have the use and occupation of a portion of the land in his possession for the purpose of erecting a homeslead, or
(ii) who is in occuaption of a hut constructed by a person owning and possessing the land in which the hut is situated and who has been permitted by such person to occupy the hut with or without an obligation to pay rent,
but otherwise has no interest in the land'.
I do not find any material difference in these definitions which will take in persons in the position of the first defendant in any of these definitions. Again, Mr. Kumaran referred to Explanation 1 to Section 3 of Act 30 ot 1958 whereby it has been said: 'Any person who was in occupation of a kudi-kidappu on the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957, shall be deemed to be in occupation of such kudikidappu with permission as required under this clause'.
Here again, the emphasis was on the expression shall be deemed to be'. In my opinion this explanation also will not in any way assist Mr Kumaran in his contention that persons in the position, of the first defendant are also sought to be included in the expression 'kudikidappukaran' and given protection by any of these enactments.
23. Therefore, it follows that according to the new Acts that have come into force, neither Bhavani nor the first defendant, is entitled to claim protection on the basis of a kudikidappukaran and they cannot effectively challenge the right of the plaintiff to get a decree for eviction in his favour.
24. Mr. Kumaran then contended that as it is a question of applying provisions of a new enactment that has come into force pending the appeal his clients should be given an opportunity to establish that she has been allowed to erect a homestead on the suit land even by the owner, namely, the plaintiff himself. If it is a question of an investigation into facts which are to be established, before a new Act could be applied, I would have certainly acceded to the request of Mr. Kumaran. But in this case it is absolutely unnecessary to send back the casefor this purpose because the point raised has been nobody's case. On the other hand, it has been the case of the plaintiff that Bhavani was put in possession by the consent of the lessee and it is also the defendant's case that Bhavani was put in possession of the property for the purpose of constructing a homestead by her uncle, namely, the lessee.
That such inducting in possession will not make Bhavani a Kudikidappukaran is clear from the definition of that expression in Travancore-Cochin Act 13 of 1953, Kerala Act 1 of 1957 and Kcrala Act 30 of 1958. The parties have fought the litigation only on the basis that Bhavani was let into possession not by the plaintiff but by the lessee, namely, Kannap-pan, who has also given evidence in this case as Dw. 1. In the face of the evidence already on record it is absolutely unnecessary to find out whether the first defendant will he able to establish that she was also permitted by the owner himself to put up a homestead on the land. There is also the significant fact that Section 6 of the Travancore-Cochin Act, 13 of 1955, itself imposes an embargo upon the right of a kudikidappukaran to alienate the tights.
That gives an indication that the right that is conferred and intended to be conferred by the Act, is a personal right of a kudikidappukaran as such who is able to satisfy the test laid down in that Act and it does not recognise any such right in the transferees. Admittedly, the first defendant who has come into the picture as only a transferee from a transferee from Bhavani cannot certainly be heard to say that she lias got the permission of the owner in the circumstances of this case. Even otherwise, the permission that is required under the definition is not a permission to continue in a building that has been already put up, but a permission to erect a homestead and such permission cannot have been given by the owner of the land to a person who was nowhere in the picture in 1118.
Again kudiyiruppu means the site given by the owner of the property, together with house, hut or shed thereon and that place must be used as a residence by the kudikidappukaran with the permission of the owner. In the state of the evidence already available before the court it is not necessary to send back the case to investigate this matter. There is the positive evidence in this case that Bhavani herself was permitted to occupy a portion of the property for the purpose of constructing a homestead by the lessee and it is only on the basis of that permission granted by the lessee that Bhavani entered the property and put up the building.
25. In the result, the decrees and judgmentsof both the subordinate courts refusing eviction areset aside and there will be a decree in favour ofthe plaintiff for eviction. But this decree for eviction will be subject to the payment by the plaintiffof the value of improvements fixed in the sum ofRs. 456-6-3 as concurrently found by both the subordinate courts. Parties will bear their Own poststhroughout in these proceedings. No leave.