JOSEPH Vs. ANTONY

JUDGEMENT

(1.) A few facts. The plaintiff sued for eviction of the defendant, who is his brother, from the building where he is residing. It is stated that the building was constructed as a shop although the defendant was residing in it since 1951. The contention of the defendant that the building was a kudikidappu was overruled and this decree was upheld at the appellate stages. When the plaintiff applied for execution of the decree, the defendant again raised the plea of kudikidappu, the passage of time producing new legislative temptations to repeat the defence of kudikidappu. However, the defendant again was defeated in the court of first instance, in appeal and in second appeal mainly on the score that he was barred by res judicata. However, undaunted, he applied for a review of the order of the executing court, apparently in a desperate effort to cling to the homested from where his brother was seeking to drive him out. The court dismissed the review application since no ground had been made out in this behalf. In first appeal, this decision was duly affirmed and the vanquished defendant has persisted in his endeavour to get a review of the order of the executing court before me.

(2.) THE grounds urged before me may now be briefly considered although I am not satisfied they have substance. Firstly, counsel argues that there is an amendment to the definition of kudikidappukaran incorporated by Act 35 of 1969 subsequent to the earlier decision negativing his case of kudikidappu. Secondly, it is urged that S. 125 (3) of the Kerala Land Reforms act (as amended) (hereinafter referred to as the Act) mandates the court to refer to the Land Tribunal any question as to whether a person is a kudikidappukaran, which arises in a suit or other proceeding before it, and so the executing court should not have decided against him but should have made over the matter for adjudication by the Land Tribunal. Thirdly, it is contended that by the operation of S. 114 of the Act all proceedings for eviction are liable to be stayed till the register of kudikidappukars has been prepared and since, in this case, no such record has yet been made by the Tahsildar, the review proceedings must be stayed.

(3.) SINCE it has been argued, let me consider one facet of the concept of kudikidappu. The reasoning that only if the building was intended to be a dwelling house when constructed can it be a kudikidappu appears to me fallacious. The learned Munsiff expressed himself rather rhetorically on the question thus: "this Explanation (i- e. relating to the definition of but is S. 2 (25) ) makes it abundantly clear that emphasis is given on the purpose for which the structure is constructed. It must have been constructed as a dwelling house. Therefore the argument that the purpose for which it is put to. is the criterion cannot be accepted. The position will be more clear if a similar instance is taken into consideration. Suppose a car-shed is being used for the residence of a family. Can it be said that the residence of the family will convert the car-shed into a dwelling house? Certainly not. It immediately follows from these circumstances that the claim of the defendant that he is a kudikidappukaran is thoroughly baseless " An effective answer to this argument is given in Davis v. State (38 Ohio St. 505, 506 ). "the law does not contemplate by the word'dwelling-house' any particular kind of house. It may be a brown stone front, all of which is occupied for residence purposes, or it may be a building part of which is used. Whether a building is or not a dwelling house depends upon the use of which it is put. A barn may be converted into a dwelling-house or a dwelling-house into a barn, by a change of uses: so an infirmary may or may not be a dwelling-house, depending in no wise upon the question of its ownership or the purposes of its original construction, but upon outside facts and circumstances. " (Extracted from The Law Lexicon in British India by P. Ramanatha Iyer ). Of course, the meaning to be attributed to words of common use but elastic import depends on the context and statutory purpose. Having due regard to the beneficent object of this provision, I think it right to accept the view that a house is a dwelling-house if it is used for dwelling and not only if, to begin with, it was built for a dwelling house. The expression is descriptive of existing use and not indicative of original purpose. Indeed, under modern conditions, there is no structural antithesis between a dwelling house and a non-dwelling house. An edifice may, to-day, be used as a residence, tomorrow as an office, and a commercial house may, with minor interior re-arrangement, reappear as a residential building; places become museums and even cathedrals do duty for art galleries, when out of commission, as in some socialist countries. And coming to humbler buildings, it is common to see poor people turn small shops into homesteads and switching over tenements into tea or toddy shops. Quite often, thatched structure may be both a shop and a hut, items of furniture and the veranda serving dual purposes, recalling Goldsmith's lines about 'a bed by night and a chest of drawers by day'. After all, law and life must be on speaking terms and to be too rigid in construction is to deaden the social purpose of the statute. I have no doubt in my mind that the character of a building as a dwelling house or shop is not fixed at birth but largely made up by actual user. So viewed, the appellant had a presentable case. But he has lost the battle in the suit and cannot shake off, in execution, the effect of the adverse decision in the suit (vide 1967 KLT. 188 ). Nor has any ground for review been now made out. The appeal fails and the plaintiff can now throw his brother out in the streets, through the court's processes. I cannot help it. 6. One point may be mentioned before I part with this case. S. 127 of the Act reads: "the provisions of this Act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract, express or implied, inconsistant with the provisions of this act. " Therefore, the present provisions, including the giving fixity to kudikidappukaran, must be applied notwithstanding anything in any other law, inconsistent with the provisions of this Act. If an application or objection were made in the further stages of the execution in the light of the new definition of kudikidappu in S. 2 (25) of the Act, the court may have to consider the impact of S. 117 of the Act. What the effect of this overriding provision is upon the prior adjudication need not be considered by me now.