Decided on March 13,1968

VELU GOPALAN Respondents


- (1.) The only question in this Second Appeal in a suit for possession of a hut, as defined in Explanation I to S.2(25) of Act I of 1964, is whether the respondent 1st defendant is a kudikidappukaran within the meaning of that Act. The remaining defendants are only the wife and children of the 1st defendant in occupation as members of his family. They claim no independent right and may be ignored and so may certain other contentions of the 1st defendant found against by the courts below and not pressed before me.
(2.) The courts below have found and that indeed is not disputed that the 1st defendant is in possession of 14 cents of land as owner on which he could erect a homestead, and, that being so, there can be no doubt that he cannot be a kudikidappukaran as defined by S.2(25) whether his case falls within clause (i) or clause (ii) thereof the qualification required by the opening words of the definition, namely, of the person concerned having neither a homestead nor any land on which he could erect a homestead, being in addition to the qualification required by clause (i) or clause (ii) as the case ay be. The decision in Puthen Petta C. S. Church v. Lonappan ( 1960 KLJ 411 ) lends no support to the view taken by the court below that the qualification required by the opening words is dispensed with where a case falls under clause (ii). In that case, the only question was whether clause (ii) was satisfied and although their Lordships did refer to the clearly untenable contention put forward on behalf of the decree holder therein that, because the judgment debtor had set up independent title to the very land eviction from which, and from the hut standing on which, was sought, he had in his possession land on which he could erect a homestead, they took no notice of that contention, obviously because it was not worth noticing.
(3.) I allow this Second Appeal by the plaintiff, set aside the decree of the lower appellate court and restore that of the first court with costs both here and in the court below.;

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