L VASANTHA KUMARI Vs. BALAMMAL

JUDGEMENT

(1.) This appeal raises question of law of general importance. Though the respondents were successful all through, they are now losing the battle in this court. The property initially belonged to one Subramonian Pillai. By the sale deed dated 5/10/1955, Subramonian Pillai sold the property in question to one Vaikuntam Pillai. By agreement dated 15/10/1956, the respondent agreed to purchase the property from Vaikuntam Pillai. Based on that agreement, he filed a suit for specific performance which was decreed and ultimately confirmed by the High court on 18/11/1963. Thereafter, the respondents filed OS No. 76 of 1967 on the file of Munsif's court,trivandrum for possession on the ground that the appellant trespassed into the land and the hut on 4/11/1955, and that, therefore, she is liable to be ejected. The suit was decreed by the trial court. On appeal, it was reversed and in Second Appeal No. 686 of 1978, by judgment dated 28/11/1983, the High court reversed the decree of the appellate court and confirmed that of the trial court. Thus this appeal.

(2.) The question is whether the appellant is deemed a Kudikidappukaran within the meaning of Explanation II-A of Section 2 (25 of Act 1 of 1964 as amended by Act 35 of 1969. Section 2 (25 defines Kudikidappukaran as :

(3.) Though Section 2 (25 defines Kudikidappukaran, the definition by operation of the Amendment Act and introduction of Explanation II-A has no materiality for the purpose of this case. The Explanation II-A is only material. It contemplates in the main part of the definition of Kudikidappukaran and notwithstanding any judgment, decree or order of any court, a person, who on 16/8/1968, was in occupation of any land and the dwelling house thereon whether constructed by him or by any of his predecessors-in-interest or belonging to any other person and continued to be in such occupation till 1/1/1970, shall be deemed to be Kudikidappukaran. It would appear that there was a chain of decisions of the Kerala High court interpreting in one way or the other of the definition of Kudikidappukaran and to remove the doubts, thus cropped up the need for legislature to step in and introduce Explanation II-A, with retrospective effect. As to operation of this Explanation, what is relevant to be considered is that the person claiming to be deemed Kudikidappukaran, he/she shall be in occupation of the land and the dwelling house as on 16/8/1968, whether constructed by himself or by herself or by any of his predecessors-in-interest or it may belong to any other person. Another condition to be fulfilled is that the person continues to remain in possession till 1/1/1970. Under General Clauses Act, male includes female. On satisfying these requirements the person in possession shall be deemed to be Kudikidappukaran. In the plaint it was admitted that the appellant trespassed in the building on 4/11/1955 and took up residence therein. In view of that admission since she came into the occupation of the building as on 5/11/1955 much before the specified date and remained to be in possession even till date, the necessary conclusion would be that she became the deemed Kudikidappukaran.