KUNJAN RAMAN Vs. JOSEPH ABRAHAM

JUDGEMENT

(1.) The defendant in a suit for eviction from a building is the appellant before me. The suit was for eviction of the defendant from the plaint building on the allegation that the building belonged to the plaintiff and was given on lease to the defendant on a monthly rent of Rs. 3/-. The defendant denied the case set up by the plaintiff. The Munsiff's Court decreed eviction in the suit by its judgment dated 31 3 1962 and the matter was taken up in appeal by the defendant. The Appellate Court remanded the case for a fresh trial. It was urged before the appellate court that though the building was put up by the plaintiff, as found by the Trial Court, the defendant was a 'kudikidappukaran' within the meaning of that term in Act IV of 1951 and was, therefore not liable to be evicted. A consideration of the question necessarily involved the determination of the question whether the plaint building was a 'hut' within the meaning of Act IV of 1961. There was no evidence as to the value of the building. The defendant contended that such value would be less than Rs. 400/- while the plaintiff contended that it is above Rs. 400/-. No commission had been taken out to determine such value. The case was remanded by the District Court to enable the defendant to take out a commission to determine such value, for the purpose of ultimately deciding the question whether the plaint building was a 'hut' within the meaning of that term in Act IV of 1961. After remand, the learned Munsiff went into the matter afresh. No evidence was adduced by either party after remand and no commission was taken out as directed. The learned Munsiff found that even according to the plaintiff the monthly rent of the dwelling was only Rs. 3/- so that the test as to the rental value of the dwelling house satisfied the definition of 'hut'. On the question of the value of the building, the learned Munsiff found that the burden of proof was on the plaintiff, who had special knowledge about the value of such building, and therefore, he was bound to prove the same. He applied S.105 of the Indian Evidence Act to the circumstances of the case. Therefore, it was found that defendant was a 'kudikidappukaran' and was liable to be evicted. The plaintiff thereupon filed an appeal to the District Court, which rightly held that the burden to show that the value of the building was above Rs. 400 was not on the plaintiff but was on the defendant. On this aspect of the matter, I agree with the learned District Judge, that if the defendant wanted to claim the benefit of the provisions of Act IV of 1961 (or Act I of 1964), it was up to him to show that he was a 'kudikidappukaran' and it was also not correct to apply S.106 of the Indian Evidence Act to the facts of the case. The learned District Judge came to the conclusion that the defendant had failed to prove that the value of the building was below Rs. 400/- and it accordingly allowed the appeal and held that the plaintiff was entitled to a decree. The unsuccessful defendant has come up before me in second appeal.

(2.) The question has to be decided with reference to definition of 'kudikidappukaran' contained in S.2(25) of Act I of 1964, as amended by Act IX of 1967. So amended, the material part of the said definition reads:

(3.) But the learned counsel for the respondent contended before me that the word 'or' in Explanation I should really be read as 'and'. According to the learned counsel, a dwelling house will not be a hut within the meaning of S.2(25) of the Act, merely because at the time of construction, it yielded a monthly rent not exceeding Rs. 5, but in addition to this, it has also to be shown that it was constructed at a cost not exceeding Rs. 500/-. Since it has not been shown in this case that the cost of construction of the dwelling house did not exceed Rs. 500, it is urged on behalf of the respondent that the dwelling house cannot be a 'hut' as defined in Explanation I to S.2(25), and therefore, the plaintiff is entitled to a decree in terms prayed for by him. This is the question which engages my attention in this second appeal.