XAVIER Vs. ANTONY

JUDGEMENT

(1.) This is an appeal by defendants 3 and 5 against the decree allowing their eviction from their dwelling house and the site thereof having an extent of 3 1/2 cents and situate, at the time the suit was filed on 25-6-1964, within the Mattancherry Municipal limits, and now, within the bounds of the Cochin Corporation. The question raised is whether the Ist defendant, their father was, a kudikidappukaran in respect of this house and on his death, defendants 3 and 5, are kudikidappukars thereof. The lower courts answered the above question in the negative. The reason therefor is: at the time the suit was filed the 1st defendant had 5 cents of land fit for erecting a homestead within the Mattancherry Municipal limits, though after the institution of the suit, in 1966 he sold the said property and since, then be had no other land fit for erecting a homestead, nor have defendants 3 and 5 any other land.

(2.) Defendants 3 and 5 contend that they are kudikidappukars falling within Explanation HA to S.2(25) of the Kerala Land Reforms Act, 1963 (hereinafter, the Act). The argument is that as on 1-1-1970 with effect from which date the said Explanation was introduced into the Act as per the Kerala Land Reforms (Amendment) Act, 1972 (Act 17 of 1972), they satisfy the requirements of the said Explanation, and that therefore, they have to be deemed to be kudikidappukars. It is not disputed that it is so but for the fact that, according to the respondent's learned counsel, this is a case falling within clause (b) of the Proviso to Explanation IIA. The only question, therefore, that arises for consideration is as to whether it is so.

(3.) Explanation IIA reads: