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Judgment
Govinda Menon, J.—The plaintiff-decree-holder is the appellant. He obtained a decree in O. S. 17/24 in the court of the Subordinate Judge of Trichur for the recovery of the plaint building and the site thereof with arrears and future mesne profits and filed E. P. 25/58 for the execution of the decree. Defendants 1, 2 and 4 who are respondents herein objected to the execution of the decree on the ground that eviction cannot be ordered and that eviction proceedings have to be stayed under the Kerala Stay of Eviction Proceedings Act I/1957 as amended by the Kerala Stay of Eviction Proceedings Amendment Act--Act XXX/1958. The learned Subordinate Judge upheld the contentions of the respondents holding that the building in question is a hut within the meaning of the Act and stayed the execution u/s 5 of Act I/1957. It is contended by the learned counsel for the appellant that before the person can claim protection under the definition of ''kudikionppukaran'' he must be a person who has no homestead or land of his own to erect a homestead and that the defendant had set up an independent title to the property stating that the claims of the church had been sold and purchased by him in court auction and that the plaintiff has no subsisting title. It was also stated that neither with regard to the nature of the materials used for the construction of the building in question nor with respect to its value does the building come within the term ''hut'' as contemplated in the section. It was also pointed out that the process of revaluation adopted by the learned Subordinate Judge is not warranted and if the valuation of the Commissioner as given in the Commissioner''s account is accepted, the value would be more than Rs. 400/- and the building would not be a hut.
The short point that arises for determination in this appeal is whether the judgment-debtors are entitled to the benefits of Act I of 1957 as amended by Act XXX/1958. In section 3 of the Amending Act, the new definition of the term "kudikidappukaran" is as follows :
kudikidappukaran'' means a person who has no homestead or land of his own to erect a homestead and--
(i) who has been permitted with or without an obligation to pay rent by an owner of land to have the use and occupation of a portion of the land in his possession for the purpose of erecting a homestead or
(ii) who is in occupation of a hut constructed by a person owning and possessing the land in which the hut is situated and who has been permitted by such person to occupy the hut with or without an obligation to pay rent, but otherwise has no interest in the land".
We are concerned with clause 2 of the definition which when analysed shows that whoever is in occupation of a hut constructed by a person owning the land and who has been permitted by such person to occupy the hut becomes a ''kudikidappukaran'' and ''kudikidappu'' mean the land and the homestead or the hut so permitted to be occupied.
Explanation I to Section 3 of the Act XXX/1958 is important. It reads as follows:
Any person who was in occupation of a kudikidappu on the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957 shall be deemed to be in occupation of such kudikidappu with permission as required under this clause.
So according to the explanation any person in occupation of the hut at the commencement of the Kerala Stay of Eviction Proceedings Ordinance viz., 11-4-57 shall be deemed to be in occupation of such kudikidappu with the permission of the owner and as such he is entitled to the benefits of Section 5 of Act 1/57. The only other question that would have to be considered would be whether under Explanation II this hut is a dwelling house which has the value not exceeding Rs. 400/-. If that test is satisfied then the occupant of such a hut on the relevant date 11-4-57 becomes a kudikidappukaran entitled to the protection under the Act.
We are fortified in the view that we take by the decision of our learned brother Raman Nayar J. in Mannayi alias Mary v Kunjan (1959 K.L.R. 1293) wherein it is observed:
It seems to me clear that explanation II to clause (3) of Section 2 of Kerala Act 1/57 (as that Act stands amended by Act XXX/58) ousts the definition of ''hut'' in clause 2 to 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 ''but'' in section 2 (2) for its occupant to be a ''kudikidappukaran''.
In another unreported decision by Raman Nayar J. in K.V. Vasu v Chami & Others (C. R. P. 868/58) where the defendants were admittedly in occupation of the plaint hut from 11-4-57, the date of commencement of the Kerala Stay of Eviction Proceedings Ordinance 1957, the learned Judge observed :
by reason of Explanation I to Section 2 (3) of Kerala Act I of 1957 as amended by Act XXX of 1958, the defendants must be deemed to be in occupation with the permission of the owner and they are thus "kudikidappukars" as defined in Section 2 (3), entitled to the benefits of Section 5 of Act I of 1957.
The learned counsel for the appellant has brought to our notice the decision in Kannu Pillai v Pankajakshi & Others (1960 K.L.J.I) decided by our learned brother Vaidialingam J. In that case, referring to the definition of kudikidappukaran in Act 1/57 the learned Judge observed :
the Act extends the definition, so as to include certain other persons which it is not really necessary for me to consider
So, the question whether the occupation of a hut would, under Explanation I to Section 3 of Act XXX/58, be protected was not really in issue and was not considered and cannot be taken to have been decided and therefore the decision cannot be taken as authority for the position contended for by the learned counsel for the appellant. We therefore hold that the learned Subordinate Judge was justified in holding that execution has to be stayed under Act I/57.
It is then contended that the value of the building exceeds Rs. 400/- and it is therefore not a ''hut''. A copy of the Commissioner''s report prepared for the suit has been produced. That report was prepared in 1950. The commissioner has valued this building at Rs. 409-13-6. Explanation II to Section 3 of Act XXX/58 says, "hut" means any dwelling house which has a value not exceeding Rs. 400/-. The expression ''which has a value'' would clearly indicate that it is the present value of the building that has to be taken into consideration. The present value, therefore, of this building must necessarily be less than what was found in 1950. The 4th defendant has been examined as a witness and he has sworn that the present value is only about Rs. 300/- and that some of the materials in the building which had been valued by the commissioner had been taken away. There is no evidence contra. Whether this version of the defendant is true or not it is only reasonable to hold that the present value of the building is less than Rs. 400/- and would therefore become a ''hut'' as contemplated in the Act. We are not therefore prepared to say that the finding on this point by the learned Subordinate Judge is wrong. In the result the order of the lower court is confirmed and this appeal is dismissed with costs.