MANNAYI ALIAS MARY Vs. KUNJAN

JUDGEMENT

(1.) I see no reason to interfere with the order staying the hearing of the appeal under S.5 of the Kerala Act I of 1957.

(2.) It seems to me clear that explanation II to clause (3) of S.2 of Kerala Act I of 1957 (as that Act stands amended by Act 30 of 1958) ousts the definition of hut in Clause.2 of the section from the definition of Kudikidappukaran in clause (3). So long as the building in question is a dwelling house, the only inquiry is whether it has a value not exceeding Rs. 400, and the building need not conform to the definition of hut in S.2(2) for its occupant to be a Kudikidappukaran. On the finding of the court below that the building now in question is a dwelling house of value less than Rs. 400, the appeal by the present respondent against the decree for possession suffered by him has been rightly stayed under S.5 of the Act although I confess to some difficulty on account of the circumstances that what S.5 stays is proceedings for the eviction of a Kudikidappukaran from his Kudiyiruppu, and there being no similar explanation to the definition of Kudiyiruppu in S.2(4), the word hut there has the meaning assigned to it in S.2(2). However, I think that the hut which makes a Kudikidappukaran of its occupant must be regarded as his Kudiyiruppu for the purposes of S.5. Why the original definition of hut in S.2(2) has been retained or why a definition of the new term, Kudikidappu has been introduced in S.2(3) is more than counsel on either side have been able to tell me.

(3.) It has been argued that the lower court should, in assessing the value of the respondent defendants dwelling house, have taken into account also the value of some structures he has put up by trespassing on the adjoining land of the petitioner plaintiff. But the petitioner has already obtained a decree for the possession of that land and the removal of the structures thereon, and those structures do not form part of the hut to which the suit is now confined.