Judgment :- 1. Whether partial use for his residential purpose by the revision petitioner of a building put up by him on a plot of land belonging to the first respondent, the land owner, in pursuance of the permission granted by her under Ext. D-1 deed of the year 1125 M.E. for erecting a building for conducting a tea shop, would entitle the revision petitioner to claim rights of a kudikidappukaran as defined in S.2(25) of the Kerala Land Reforms Act, for short the Act, is the question that arises for decision in this revision. 2. The petition under S.80A and 80B of the Act for the purchase of kudikidappu filed by the revision petitioner was allowed by the Land Tribunal; however, on appeal the Appellate Authority reversed the order of the Land Tribunal and dismissed the application. The reasoning behind the decision of the Appellate Authority could be gathered from the following passage extracted from the judgment of that Authority: "Ext P-2 voters' list of the year 1966 shows that applicant was residing in this building during that period. That the applicant has residence is the building is not seriously in dispute. The only question is as to whether the applicant who was permitted to put up a building for a commercial purpose can claim kudikidappu for the reason that he has residence also. When it is shown (as is shown by Ext D-1. that the permission was only for a commercial purpose, it must be said that the residence without permission is not basis for a claim for kudikidappu right. So the order allowing purchase of kudikidappu right is not proper." 3. Sri S. Parameswaran, counsel for the revision petitioner, submitted that the Appellate Authority did not properly grasp the scope and ambit of Explanation IIA to S 2(25) of the Act. According to him, the fact that the initial permission granted to the revision petitioner was to put up a building for a commercial purpose would riot by itself preclude him from claiming kudikidappu right if the building in his occupation was used also for residential purpose from a period not later than the 16th day of August 1968, and such use continued till the Ist day of January 1970. What is relevant, according to Sri Parameswaran, is not the purpose for which the permission was initially granted, but the actual use to which the building was put to during the material item He placed reliance on the following passage from the decision of Krishna Iyer J. in Joseph v. Antony (1971 KLR. 291): "Having due regard to the beneficent object of this provision, I think it right to accept the view that a house is a dwelling house if it is used for dwelling and not only if, to begin with, it was built for a dwelling house. The expression is descriptive of existing use and not indicative of original purpose ...I have no doubt in my mind that the character of a building as a dwelling house or shop is not fixed at birth but largely made up by actual user." 4. Sri K. N. Narayanan Nair, the counsel for the 1st respondent, contended that the decision referred to above only lays down that the character of a building as a dwelling house or shop building has to be fixed with due regard being given to the actual user, without being strictly guided by the purpose for which it was originally built. He went on to argue that it has not been laid down therein that where no permission was given by the land owner, to the person concerned, to erect a building for residential purpose, and it was expressly provided in the deed that the permission granted was to put up the building for a specific commercial purpose, the user for residential purpose of such shop building put up by him would not entitle him to claim the rights of a kudikidappukaran. To attract the provisions of S.2 (25) (a), (S. 2 (25) (b) being not applicable to the case), according to the counsel, the 1st respondent ought to have permitted the revision petitioner to have the use and occupation of the land for the purpose of erecting a homestead and that the benefit of the section does not extend to cases where the initial permission was for putting up a shop building, but the building erected on such permission was made use of partly or fully for residential purposes subsequently. It was pointed out by him that Krishna Iyer J. himself did not subscribe to the view that irrespective of the nature of the initial occupation persons who were found to be in occupation of a structure between the 16th August 1968 and 1st January 1970 would be entitled to the benefit of kudikidappukars. The following observations of Krishna Iyer J. in Mariam and others v. Ouseph Xavier (1971 KLR. 359) has been cited in support of this submission. "Running right through all the benignant enactments relating to kudikidappus is a striking feature, that protection is given only to those who have built and/or entered huts with the permission of the one lawfully in possession." 5. Sri Narayanan Nair also placed reliance on a Division Bench ruling of this Court in George v. Sivadasan (1972 KLR. 128), wherein, speaking for the Bench, in Para.8 at page 133 of the decision, Krishnamoorthy Iyer J. has observed as follows: "The point to be considered is when a person proves the conditions stated in the proviso whether the initial permission contemplated by S.2 (25) (a) and (b) can be presumed. To apply the proviso there should be a kudikidappu. According to S.2 (25) a kudikidappu means me land and the homestead erected by the person to whom permission is given under clause (a) or the but occupied under the terms of clause (b). A person claiming to be kudikidappukaran has therefore to prove that the homestead which is occupied by him was erected by him on a land given to him for that purpose or that his occupation of the but was given to him as stated in S.2 (25) (b). The proviso does not relieve the occupant of this burden " Explanation IIA of S.2 (25 reads as follows: "Notwithstanding any judgment, decree or order of any court, a person, who, on the 16th day of August, 1968, was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of January, 1970. shall be deemed to be a kudikidappukaran. 6. A Full Bench of this Court had occasion to consider the ambit of the Explanation quoted above in the decision reported in Thankappan Asari v. Ammukutty Bai (1973 KLT. 443). shall be deemed to be a kudikidappukaran. 6. A Full Bench of this Court had occasion to consider the ambit of the Explanation quoted above in the decision reported in Thankappan Asari v. Ammukutty Bai (1973 KLT. 443). Speaking for the Bench, Raghavan C. J., stated as follows: "In our opinion, the position is clear because of the language of Explanation II to S.2(25) of Act I 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." 7.In a still later decision in Chinnan v. Gopinathan (1975 KLT. 50), speaking for the Division Bench, Govindan Nair C. J., has observed as follows:- "To confer fixity of tenure on a rank trespasser is not an agrarian reform Such a provision would violate the guarantee of right to property under Art.19 (i) (f) and by no stretch of imagination would it be possible to conclude that the interest of the general public would be served by such a provision conferring rights on those who commit unlawful acts and indulge on land grabbing or forcible occupation of homesteads or huts." 8. Sri Parameswaran submitted that there is a notable distinction between the facts of the present case on the one band and the facts of the cases considered by this Court in the decisions referred to above; this was not a case where the petitioner entered the land as a trespasser and erected a homestead as such; it is not disputed that the petitioner entered the land with permission of the first respondent. The crucial question, therefore, is, where the initial permission was for erecting a shop building, whether the subsequent user and occupation of the building as a dwelling house continuously during the period from 16-8-1968 till 1-1-1970 would entitle the revision petitioner to claim the benefits and protection of a kudikidappukaran as provided under S.2 (25) of the Act, particularly in the light of Explanation IIA thereto. It would be advantageous here to refer once again to the decision of the Division Bench of this Court in George v. Sivadasan (1972) KLR.128), wherein in Para.9 it is stated as follows: "The proviso introduces a legal fiction. A person claiming the benefit of the proviso has to prove that he was in occupation of the land and the homestead thereon or he was in occupation of the but referred to in clause (b) on the 16th day of August. 1968 and he must also prove that he has been continuing in such occupation on the date of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969), The point to be considered is when a person proves the conditions stated in the proviso whether the initial permission contemplated by S.2 (25) (a) and (b) can be presumed. To apply the proviso there should be a kudikidappu. According to S.2 (25) a kudikidappu means the land and the homestead erected by the person to whom permission is given under clause (a) or the but occupied under the terms of clause (b). A person claiming to be kudikidappukaran has therefore to prove that the homestead which is occupied by him was erected by him on a land given to him for that purpose or that his occupation of the but was given to him as stated in S.2 25 (b). The proviso does not relieve the occupant of thisburden (Emphasis supplied) If we take too rigid or narrow view about the observations made in the above decisions, it may. lead us to the conclusion that even when the person is not a trespasser, if the homestead which he occupies was not erected on a land given to him for that purpose, the benefit of the proviso would not be available. lead us to the conclusion that even when the person is not a trespasser, if the homestead which he occupies was not erected on a land given to him for that purpose, the benefit of the proviso would not be available. All the same, if we take a broader view of the whole matter distinction could be drawn between the case where the homestead occupied is built on a land trespassed upon by the person one the one hand, and the case where the construction of the building was on a land on which the person entered lawfully with permission to construct a building. 9. The following observation of Raghavan C J, in Thankappan Asari v. Ammukutty Bai (1973 KLT. 443 F.B.) would be of some assistance to come to a proper conclusion in the peculiar circumstances of the case. "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". 10. Krishna Iyer J. in Mariam and other v. Ouseph Xavier (1971 KLR. 359) has stated as follows: "The accent is on the need for permission which is irrebuttably presumed where the occupation at the inception is not hostile and has continued during a specified period with or without permission. This latter legal fiction was necessary if the protection in the substantive clause was not to be rendered illusory." (Paragraph 9) "The whole clause, read together, at once accents the need for permission at the inception and nullifies the potency of the landlord's later recantation. In short, the initial leave to occupy is obligatory to make the dweller a kudikidappukaran. The proviso operates only at the next stage. If as the reported ruling (1966 KLT. 673) insists, a continued existence of permission upto 11th April 1957 or other later date specified in the statute should be read into the substantive clause, the proviso steps in to dispense with it in cases where the occupant has been in the but between 16th August, 1968 and 1st January 1970. If as the reported ruling (1966 KLT. 673) insists, a continued existence of permission upto 11th April 1957 or other later date specified in the statute should be read into the substantive clause, the proviso steps in to dispense with it in cases where the occupant has been in the but between 16th August, 1968 and 1st January 1970. If Madhavan Nair J. is right, the proviso is otiose; if Madhavan Nair J. is wrong, the proviso salvages the legislative intent. Viewed against the history and the constitutional backdrop of the kudikidappu provision in the tenancy legislation of the land, calculated to stabilise agrarian labour settled on the land, to start with by the owner's consent the legislative project only sanctions their continuance against the owners will rather than freeze all occupation even such as is secured by criminal trespass. The law loves neither him who grabs land or building; for, that would be humanism gone haywire, nor him who bulldozes bumble dwellers out of their shacks, for that would be a negation of the wholesome humanism behind the statute." [Paragraph 13] [emphasis supplied]. 11. If we take the literal view of what Krishnamoorthy Iyer J. observed in George v. Sivadasan (1972 KLR.128), it would appear that even if the revision petitioner was not a trespasser, for him to be entitled to claim the benefit of kudikidappukaran, he has also to prove that he has been in occupation of a homestead erected on a land given to him for that purpose (for erecting a homestead); however, when we consider in depth the legislative intent and the true spirit of the relevant provisions in the Act, there would be no difficulty to conclude that the observation should be deemed to be confined to cases where there was no initial permission to the occupier to enter the land, cases where the occupier, after lawfully entering the land, made use of the building put up by him, partly or wholly, for a purpose different from the one for which permission was granted, not having fallen for consideration in that case. 12. 12. The wording of Explanation IIA to S.2(25) would lend support to the conclusion that the legislature really wanted to confer the benefit of kudikidappu right on the person in occupation of the building constructed on the land of another, used as dwelling h use as on the 16th day of August 1968 and continued to be in such occupation till the 1st day of January 1970. It is obvious that the legislature, while enacting the deeming provision contained is Explanation IIA to S 2(25), has not specifically stated anything about the exclusion of trespassers The Division Bench ruling in Chinnan v Gopinathan [1975 KLT 50] that there was no intention to confer fixity of tenure on a trespasser is based on the reasoning that the legislature could not have intended to make a provision in violation of the guarantee of right to property under Art.19[1] [f] of the Constitution. It may also be noted that the said Explanation does not speak about'hut' but only of 'land and dwelling house'. To satisfy the requirement of the deeming provision imported by the Explanation, it would be enough that the person claiming kudikidappu right was in occupation of "any land and the dwelling house thereon" (constructed on land belonging to another). "Where the initial entry on the land on which the building is built is wit permission to enter the land and build the building upon it, the occupant of the land cannot be called a trespasser even though the building put up by him on the basis of the premiss on obtained was made use of for a purpose different from the one for which permission was granted. If the building was partly or wholly used as a dwelling house as on 16 81968, applying the dictum laid down by Krishna Iyer J in Joseph v. Antony (1971 KLR. 291), such occupation as dwelling house not being as a trespasser, when continued till the 1st day of January 1970, the requirement of the section, even as interpreted by decision of the Division Bench of this Court in Chinnan v Gopinathan (1975 KLT 50), should be deemed to have been satisfied. 291), such occupation as dwelling house not being as a trespasser, when continued till the 1st day of January 1970, the requirement of the section, even as interpreted by decision of the Division Bench of this Court in Chinnan v Gopinathan (1975 KLT 50), should be deemed to have been satisfied. In the Explanation the legislature has used the words "land and the dwelling house" instead of "land and the homestead" deliberately to remove the difficulties that might arise if permission for erecting the dwelling house also was to be treated as a condition to be fulfilled to claim kudikidappu right. It is therefore fairly clear that to satisfy the requirements of the legal fiction of kudikidappukaran introduced by Explanation IIA to S 2 (25) of the Act, it would be sufficient if the building was occupied as a dwelling bouse by the person who was permitted to construct the building on the land belonging to another, and such occupation of the dwelling house continued till the 1st day of January 1970, irrespective of the fact that the permission granted was for constructing a shop building, not for a residential building. 13. Sri Parameswaran has also placed reliance on the decision of a Division Bench of this Court dated 18 31977 in A. S. A. No. 9 of 1977 to press the point that the absence of a negative covenant coupled with the acquiescence on the part of the first respondent would estop the 1st respondent from contending for the position that the revision petitioner was not entitled to use the building for residential purpose, or that permission in that behalf was not granted. It is also contended by Sri. Parameswaran that the use for residential purpose of the building with respect to the construction of which the permission was for use as a commercial building, does not amount to an act destructive of or permanently injurious to the land belonging to the 1st respondent. True it is that there is no negative covenant; but it is not clear whether acquiescence was properly proved or not. 14. True it is that there is no negative covenant; but it is not clear whether acquiescence was properly proved or not. 14. On a careful consideration of the provisions contained in S.2(25) of the Act, bearing in mind the scheme and purpose of the legislation, I am of the view that the revision petitioner is entitled to be treated as a kudikidappukaran if he was found occupying the building as a dwelling house on the 16th day of August 1968 and such occupation continued till the 1st day of January 1970 in spite of the fact that the permission granted by the 1st respondent to him under Ext. D-1 was to put up a building to be used as a tea shop and there is nothing to show therein that the permission was granted for erecting a homestead. The Appellate Authority, however, is not seen to have reached a definite finding on the crucial question whether the revision petitioner was using the building for residential purpose on 16-8-1968 and such occupation continued till the 1st day of January 1970. No doubt, there is reference to Ext. P2 voters' list of the year 1966 and an observation that it showed that the revision petitioner was residing in that building during the period. It is also stated that the revision petitioner had residence in the building was not seriously in dispute. This observation, however, cannot be treated as a substitute to a definite finding as to whether the revision petitioner was occupying the land and the building as a dwelling house on 16-8-1968 and such occupation continued till the 1st day of January 1970 which is the minimum that is required to be proved to satisfy the requirements of Explanation IIA. In order to enable the Land Tribunal to go into this question the order of the Land Tribunal and the judgment of the Appellate Authority are set aside, and the matter is remanded to the Land Tribunal for fresh disposal according to law and in the light of the observations contained in this order. The revision is disposed of as above. There will be no order as to costs in the circumstances of the case. Allowed.