1. The fourth defendant in a suit for recovery of possession on the strength of title is the appellant, The plaintiff being the respondent. The courts below have held that the appellant is a trespasser; and on that basis, They have also granted a decree in favour of the respondent for recovery of possession. The second appeal is against that decision. After act 35 of 1969 amending act 1 of 1964 came into force, The appellant filed the civil miscellaneous petition seeking leave for raising an additional ground in the second appeal; and we allow the same. The question thus raised is the only question we have to consider in the second appeal; and the question is whether, Even if the appellant is only a trespasser, Be is entitled to immunity from eviction, In view of s. 2 (25) (b) of act 1 of 1964 as amended by act 35 of 1969.
s. 2 (25) defines "kudikidappukaran". The clause reads: "kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent three cents in any city in possession either as owner or as tenant.
on which be could erect a homestead and.
(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or
(b) who has been permitted by a person in lawful possession of any land to occupy, With or without an obligation to pay rent, A but belonging to such person and situate is the said land; and "kudikidappu" means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto:
provided that a person who, On the 16th august, 1968, Was is occupation of any land and the homestead thereon, Or in occupation of a but belonging to any other person, And who continued to be in such occupation at the commencement of the kerala land reforms (amendment) act, 1969. Shall be deemed to be in occupation of such land and homestead, Or but, As the case may be, With permission as required under this clause.
explanation ii: for the purposes of this clause:
(a) "hut" means any dwelling house constructed by a person other than the person permitted to occupy it:
xx x x
(b) "homestead" means, Unless the context otherwise requires, Any dwelling house erected by the person permitted to have the use and occupation of any land for the purpose of such erection.
the argument is that, Since it is now found that the appellant was in occupation of the but on 16th august 1968 and continued to be in such occupation at the commencement of the kerala land reforms (amendment) act, 1969, He must be deemed, By virtue of the proviso, To be in occupation with permission as required under sub - clause (b) above.
2. After this case has been referred to a pull bench, The decision in vareeth george v. Achuthan sivadasan (1972 klt. 107) has been rendered by a division bench; and the same question appears to have been considered by the division beach in the said decision. The correctness of the said division bench ruling has naturally been questioned before us; and in so doing, One or two observations of this court in other decisions, Which do not appear to have been considered by the division bench, Have also been brought to our notice. For instance, In mohammed kunju v. Devaki amma (1966 klt. 79), A learned judge has observed:
"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. "
the same learned judge has said in an order of reference in ulahanuan v. Jaya - raja menon (s. A. No. 454 of 1967) that the decision of another learned judge in gopalan v. Chellamma (1966 klt. 673) required reconsideration. In this reference order also, The learned judge has referred to his earlier decision which we have referred to already. As we have already indicated, These two observations do not appear to have been brought to the notice of the division bench: but, The division bench has considered all the other relevant decisions on the question including gopalan v. Chellamma (1966 klt. 673).
3. In that decision the learned judge has considered the definition of "kudikidappukaran" in act 1 of 1964 before its amendment by act 35 of 1969. The learned judge has observed that "kudikidappu" by its very definition implied permission to erect a homestead or permission to occupy a hut. And such permission for the original occupation will be deemed to have continued if the person was found to be in occupation on 11th april 1957 (now 16th august 1968) even though the permission was subsequently withdrawn. For the second aspect regarding the continuance of the permission, The learned judge has relied on the conception of kudikidappu itself, Which involved the element of permission and which term appeared in explanation ii of the unamended act (which now takes the form of the proviso in the amended act). The counsel of the appellant has pointed out that the present proviso to s. 2 (25) has omitted the term "kudikidappu" with the intention of doing away with the effect of the said decision, And therefore, Under the present proviso, The deeming is not confined to the continuance of the permission but applies even to the permission required at the time of creation of the kudikidappu. In other words, The contention is that a person like the appellant, Who was in occupation on 16th august 1968, Though not with permission (even as a trespasser), And who continued to be in such occupation at the commencement of the kerala land reforms (amendment) act of 1969, Shall be deemed to be in occupation with permission. This contention means that the occupation of the person need not be lawful, May be unlawful and be even that of a trespasser.
4. We do not think that this contention can be sustained. We do not propose to go in any detail into the decisions considered by the division bench in their judgment, Viz., Decisions of krishna iyer j. ,
subramonian poti j., Etc in our opinion, The position is clear because of the language of explanation ii to s. 2 (25) of act 1 of 1964 as it now stands. Explanation ii states that a but means any dwelling house constructed by a person other than the person permitted to occupy it. This makes it clear that the occupation of the hut, Which is the criterion for a "kudikidappu", Implies permission to occupy it. Similarly, The same explanation states that "homestead" means any dwelling house erected by the person permitted to have the use and occupation of any land for the purpose of such erection. This again indicates that the construction of a homestead on a land which will make the person constructing it a "kudikidappukaran", Implies permission to occupy the land for the purpose of erecting the homestead this is is what the division bench has also held. The division bench has observed:
"in our view, A person wanting to take advantage of the proviso has to establish that there is a but within the meaning of s. 2 (25) (a) read with explanation ii (a) and also his occupation during the period mentioned in the proviso. Similarly a person wanting to take advantage of s. 2 (25) (b) must satisfy the requirements thereof read with explanation ii (b) and also that he was in occupation for the period mentioned in the proviso."
therefore, For a person to claim kudikidappu right under s. 2 (25) read with the proviso, He should establish that his initial occupation was with permission as contemplated by explanation ii and if such occupation was prior to 16th august 1968 and if he was found to be in occupation on the date of commencement of the kerala land reforms (amendment) act, 1969, Then he would be deemed to be in occupation with permission. In this connection, We may also refer to the decision of one of us in markose peter v. Chacko ittycheria (1971 klt. 481), Where it is stated:
"for. As i understand the proviso, What it enacts is, That the fact of possession at the relevant date and the continuance of possession being established, And nothing more appearing, It shall be deemed that the occupation was with the permission as required by s. 2 (25). But if, In addition to the occupation on the specified (date and the continuance thereafter, We have the proved face that the occupation is claimed to be adverse (to the person whose permission is sought to be availed of for the purpose of claiming kudikidappu rights, It is difficult to fill (?) the requirements of the definition of "kudikidappukaran - "
this is the maximum that a person like the appellant can claim in a case like this. If the appellant was found to be in occupation on 16th august 1968 and was also found to have continued in occupation on the date of commencement of act 35 of 1969 (nothing more appearing), Then he would be deemed to be in occupation with permission. But, In this case, Since the initial occupation of the but by the appellant is now found to be by trespass, It cannot be held that he is a kudikidappukaran under s. 2 (25) (b), Though he continued to be in such occupation on the date of commencement of the kerala land reforms (amendment) act.
5. In this connection, On the nature of the appellant's occupation, The decision of the supreme court in budhan singh v. Babi bux (air. 1970 sc. 1880) has been brought to our notice. Hegde j. Speaking for the court was considering the scope of s. 9 of the u. P. Zamindari abolition and land reforms act, 1950, Wherein the term "held" appeared; and the learned judge interpreted the word "held" as "lawfully held" in so doing, Hegde j. Has followed the earlier decision of the supreme court in k. K. Handique v. Member, Board of agricultural income - tax, Assam (air. 1966 sc. 1191). Applying the same principle to the case before us, "occupation" in the present case can mean only "lawful occupation", Not the occupation of a trespasser. This position is obvious; and we do not think it is necessary that we should refer to the other authorities pointed out by the counsel of the respondent. At any rate, We shall just refer to one or two sentences from crawford on statutory construction. At page 290 in para. 177 appears:
"any construction should be avoided, If possible, As contrary to the intent of the law - makers, That produces any effect at variance with the commonly recognized concepts of what is right, Just and ethical."
at page 421 in para. 227 appears:
"moreover, There is also a presumption that the legislature did not intend to overthrow legal principles which have been in existence for a long period of time, In the absence of a contrary intent clearly expressed in the statute. In other words, Any statute which requires construction should be construed to be in harmony with the existing law. This is a basic principle of construction"
'
for all these reasons, We hold that the appellant is not entitled to claim rights as a kudikidappukaran. And we dismiss the second appeal with costs. Dismissed.