MOHAMMED KUNJU Vs. DEVAKI AMMA

JUDGEMENT

(1.) THE respondent plaintiff got the property in suit, 14 cents of garden land, under a final decree in a partition suit. THE evidence of the Commissioner, pw. 2, who inspected the property in December 1956 for the purpose of effecting the division, shows that there was then no building of any kind on this property and his report, Ext. P-1, makes no mention of a building as it ought to have if, in fact, there was one. It would appear from Ext. P-2, the house tax assessment register of the local Panchayat, that it was only for the year 196162 that a but in the occupation of the appellant defendant was for the first time brought to the assessment register. In view of this evidence, I think the lower appellate court rightly preferred the plaintiff's case, spoken to by her husband as pw. 1 that the defendant trespassed on the property and put up the but in question only some time in 1961 in preference to the defendant's case that he and his forefathers before him were in occupation of the but for over 60 years so that even if he was unable to prove the permission required by the definition of "kudikidappukaran" in S. 2 (25) of Act I of 1964, explanation II to the definition would serve to make him a Kudikidappukaran entitled to fixity under S. 75 of the Act.

(2.) I might add although this is hardly material having regard to the evidence in the case that the burden of proving occupation before 1141957 so as to get the benefit of the explanation lay on the defendant and that the first court was wrong in holding otherwise. I might also point out that, literally construed, the explanation says no more than that a person in occupation with permission shall be deemed to be in occupation with permission since the element of permission is an essential ingredient of the definition of, "kudikidappu" in the body of S. 2 (25 ). Possibly if the question arises this court might hold as the courts below have assumed that the word, "kudikidappu" is used in the explanation not in the sense in which it is defined but as dispensing with the element of permission.