N N ISMALU Vs. THITHIRIKUTTY UMMA

JUDGEMENT

(1.) This appeal, under S.5 of the Kerala High Court's Act, is against the judgment of a learned Judge of this Court in Second Appeal No. 269 of 1960. The matter arises out of a proceeding in execution of the decree in O. S. No. 56 of 1957 on the file of the Munsiff's Court, Parappanangadi. The appellant before us was the 6th Defendant in the suit which was one for redemption of a mortgage. He was one of the persons who had been permitted by the mortgagee to occupy a hut in the mortgaged property. It has been found, and the finding is not now open to question that the hut belongs to the mortgagor. The appellant contended that he was a 'kudikidappukaran' entitled to protection under the Kerala Act VII/1963. The contention was rejected by the learned Judge against whose judgment this appeal has been preferred.

(2.) The same contention has been repeated before us with respect also to the provisions of the Kerala Act 1/1964 and of Act V/1969. We agree with the learned Judge that under the definition of the term 'kudikidappukaran' under Act VII/1963, while permission to occupy the hut may be granted even by a person in lawful possession of any land and therefore by the mortgagee it is necessary that the hut must 'belong' to the person who granted the permission. The appellant, therefore, was rightly held by the learned Judge not to satisfy the definition of the term 'kudikidappukaran' under the Kerala Act VFI/1963. Explanation I to the said definition enacts a rule of presumption as to lawful permission arising from continuous occupation from and after a specified date for a specified period, but it does not dispense with the requirement that the hut must 'belong' to the person permitting occupation.

(3.) The position has in no wise been altered by the statutory enactments which have since followed. S.2(25) of Act 1/1964, in so far as it is relevant reads: