Judgment :- 1. The points that arise for consideration in this case, are: (1) A person in occupation of a building who contested a petition for eviction under S.11 of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 contending that as tenant be was not liable to be evicted and who raised the plea that be was a kudikidappukaran only in the execution proceedings, whether can maintain an application for purchase of kudikidappu under S.80B of the Kerala Land Reforms Act 1 of 1964? and (2) where permissive occupation of the building is not in dispute, can there be a question of invoking Explanation IIA to S.2(25) of the Kerala Land Reforms Act 1 of 1964? 2. The petitioner, the owner of a building in the Corporation of Cochin in the possession of the 2nd respondent as its tenant, filed a petition for eviction under S.11(4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 1964, before the Rent Control Court, Cochin in 1979. The 2nd respondent-tenant contested the matter. He also filed a petition before the Accommodation Controller under S.17 of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court allowed eviction. The 2nd respondent-tenant challenged the order of eviction in appeal and revision but without success. When the order for eviction was sought to be executed, the 2nd respondent raised a contention that he was a kudikidappukaran and hence could not be evicted. This contention was rejected by the Execution Court. From that order, the 2nd respondent filed a revision before the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965. Thereafter, the 2nd respondent filed an original suit before the Munsiff's Court, Cochin and sought an injunction against the execution of the decree. It was then that the 2nd respondent filed an application under S.80B of the Kerala Land Reforms Act 1 of 1964 before the 1st respondent-Special Tahsildar (LR), Vypeen for purchase of kudikidappu. The 1st respondent granted an interim injunction against eviction of the 2nd respondent from the building. The petitioner contested the injunction matter by filing a counter-affidavit. After hearing the counsel on both sides, the 1st respondent made the injunction absolute by Ext. P-5 order holding: "In view of Expl. The 1st respondent granted an interim injunction against eviction of the 2nd respondent from the building. The petitioner contested the injunction matter by filing a counter-affidavit. After hearing the counsel on both sides, the 1st respondent made the injunction absolute by Ext. P-5 order holding: "In view of Expl. IIA to S.2(25) I am unable to support the contention that the applicant is estopped from claiming kudikidappu under the KLR. Act. The applicant is entitled to raise the question of kudikidappu under the Act notwithstanding any judgment, decree or order of Civil Court. It has come out that the respondent has got an order for eviction of the applicant from the petition schedule building. If the respondent is allowed to enforce that order, if any right available to the applicant under the Act (which is a matter that can be decided only after taking evidence) cannot be enforced. I, therefore, find that an interim injunction restraining the respondent from taking any steps to evict the applicant from the building No. IV/167 till the final disposal of (he application for purchase of kudikidappu, is essential." In this original petition the petitioner challenges the above order Ext. P-5. 3. The petition for eviction was filed before the Rent Control Court long after the Kerala Land Reforms Act 1 of 1964 was amended by Act 35 of 1969 and Explanation IIA was inserted in S.2(25) defining kudikidappukaran, by Act 17 of 1972. The definition of 'tenant' in the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 excludes a kudikidappukaran as defined in the Kerala Land Reforms Act 1 of 1964. The 2nd respondent did not raise a contention before the Rent Control Court that he was a kudikidappukaran. On the other hand, he contested the petition for eviction as a tenant. He also filed an application before the Accommodation Controller under S.17 of Act 2 of 1965. This only a tenant as defined in Act 2 of 1965 could do and a kudikidappukaran, at any rate, could not, as the definition of 'tenant' does not include a kudikidappukaran. Having done all these, now it is too late in the day for the 2nd respondent to contend that he is a kudikidappukaran. He is barred by constructive res judicata. Having done all these, now it is too late in the day for the 2nd respondent to contend that he is a kudikidappukaran. He is barred by constructive res judicata. He is also estopped from raising a contention of kudikidappu now, in view of the fact that he took a plea quite inconsistent with this before the Rent Control Court. A party cannot approbate and reprobate and cause detriment to his opponent. In this case, the same transaction, namely, the lease of the building in question by the petitioner to the 2nd respondent was the subject matter of the litigation before the Rent Control Court and is the subject matter of the litigation in the application for purchase of kudikidappu pending before the Special Tahsildar (LR). The parties are also the same. So, when the 2nd respondent elected not to raise the contention regarding kudikidappu before the Rent Control Court, he missed the bus. 4. The Special Tahsildar (LR) has granted the injunction in view of Explanation IIA to S.2(25) of the Kerala Land Reforms Act 1 of 1964. By the Explanation, a person who was in occupation of any land and the dwelling house thereon on 16th day of August 1968 and who continued to be in occupation till the Ist day of January, 1970 shall be deemed to be a kudikidappukaran notwithstanding any judgment, decree or order of any court. So, there are kudikidappukars and deemed kudikidappukars. Kudikidappukars are persons who have been permitted to have the use and occupation of a portion of land for erecting a homestead or who have been permitted to occupy a hut. Deemed kudikidappukars are persons in occupation without permission but who gets the benefits of kudikidappukars in view of the continued occupation insisted by the Explanation. So, one who is a kudikidappukaran cannot be a deemed kudikidappukaran. Only in the case of deemed kudikidappukars the non obstinate clause in Explanation IIA will come into play. In this case, neither the petitioner nor the 2nd respondent has a case that the occupation of the building was without permission. So, the 2nd respondent can only be a kudikidappukaran and not a deemed kudikidappukaran. Hence the Ist respondent-Special Tahisldar (LR) was in the wrong in holding that the 2nd respondent is entitled to the benefits of Explanation IIA to S.2(25) of Act 1 of 1964. 5. So, the 2nd respondent can only be a kudikidappukaran and not a deemed kudikidappukaran. Hence the Ist respondent-Special Tahisldar (LR) was in the wrong in holding that the 2nd respondent is entitled to the benefits of Explanation IIA to S.2(25) of Act 1 of 1964. 5. Before T part with the case, it is only proper that I refer to the decisions cited by the counsel appearing in the case. In Kesava Bhat v. Subraya Bhat (1979 KLT. 766) a Full Bench of this Court has held: "The proposition put forward by counsel for the revision petitioner that failure to plead rights acquired pending the suit or proceedings, cannot constitute res judicata, is, in that form, unexceptionable, and supported by authority See, for instance, Abdulla v. Ayisumma (1958 KLJ. 954). But we have to take note of the fact that although O.S. No. 32 of 1967 was filed before the Land Reforms Act and Act 35 of 1969, the revision petitioner was impleaded as a defendant therein only on 14-8-1972, that is, after Act 35 of 1969. As against him. the suit is to he regarded as having been instituted only in 1972. The transitory provision S.108 (3) of the Land Reforms Act contains a mandate to the court to dispose of the suit in accordance with the amended provisions of the Land Reforms Act. The suit O.S. 32 of 1967 was decreed only in 1976 (Ext. Al). If in spite of these, the revision petitioner failed to substantiate his claim of tenancy, with respect to the provisions of the Land Reforms Act now relied on we think he would be barred by the principle of constructive res judicata from agitating the claim at this stage of the proceedings." In Madhavan v. Bhavani (1980 KLT. 315) a Division Bench of this Court has held: "We find no error of jurisdiction whatever in the order that is sought to be revised. In our opinion, the executing court was perfectly right in its view that the judgment-debtors are precluded by the principle of res judicata from putting forward before the executing court their plea of kudikidappu. 315) a Division Bench of this Court has held: "We find no error of jurisdiction whatever in the order that is sought to be revised. In our opinion, the executing court was perfectly right in its view that the judgment-debtors are precluded by the principle of res judicata from putting forward before the executing court their plea of kudikidappu. Since the said suit is one instituted prior to 1-1-1970 the civil court had ample jurisdiction to entertain and adjudicate upon the plea relating to the alleged kudikidappu right of the defendants; but no such plea was put forward by the defendants either before the trial court or even before the appellate court. In the circumstances the judgment-debtors are not entitled to raise for the first time at the execution stage the plea that they have any kudikidappu right in respect of the decree schedule property. The order Ext. BI passed by the Land Tribunal is manifestly illegal in as much as it has been passed ignoring the principle of res judicata which clearly debarred the judgment-debtors (defendants) from putting forward before the Land Tribunal the plea that they were kudikidappukars in view of the categorical finding recorded by the civil court that they were in possession of the property only as rank trespassers." In Sunanda v. George (CRP. 43 of 1979) my learned brother Chandrasekhara Menon J. has held: "The applicant for purchase of kudikidappu right is disentitled to claim the status of a kudikidappukaran under the Kerala Land Reforms Act on the basis of the principle of estoppel by taking inconsistent positions or of estoppel by pleadings. A party to a suit or other legal action is estopped from setting up a plea contrary to the one which he had successfully set up in a former proceeding." In the above case, the contention taken by the land owner was that before filing an application for purchase of kudikidappu the tenant successfully filed an application under S.17 of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 and that too after I-1-4970 and hence he could not claim kudikidappu rights. In the above decision, Chandrasekhara Menon J. has referred to A. N. Shah v. A. Annapurnamma f AIR. 1959 AP. In the above decision, Chandrasekhara Menon J. has referred to A. N. Shah v. A. Annapurnamma f AIR. 1959 AP. 9) where the High Court of Andrapradesh held that it was not open to the tenant of a building who contended before the Rent Controller that the building in question will not fall within the definition of 'building' in the Madras Building (Lease and Rent Control) Act and hence be was not a tenant and got dismissed an application for eviction under S.7 of that Act to turn round and contend in a subsequent civil suit for eviction that the lease relates to a building as defined in the Act and the civil court has no jurisdiction to entertain the suit. In Kittan Devaki v. Ramachandran Nair (CRP 3185 of 1977) also Chandrasekhara Menon J. had occasion to consider a similar question where a tenant got a petition filed to execute a decree dismissed contending that the transaction was a lease within the meaning of the Kerala Buildings (Lease and Rent Control) Act and later filed an application for purchase under S.72 of Act 1 of 1964. It was held: "In this case in the execution petition, the present petitioner definitely took up the position that it is a building lease to which the provisions of the Kerala Buildings (Lease and Rent Control) Act would be applicable. Having secured advantage therein in forcing the landlord to have recourse to the provisions of the Kerala Buildings (Lease and Rent Control) Act, in spite of getting a decree from the civil court, it is not now open to the petitioner to file a petition before the Land Tribunal claiming that she is a tenant of not the building as such but of the whole property, coming within the ambit of the word 'cultivating tenant' under the Kerala Land Reforms Act. The Appellate Authority has rightly rejected her plea." Reference was also made to George v. Vareed (1978 KLT. 691) and Velayudhan v. Aishabi (1981 KLT. 629) two Full Bench decisions of this Court. But these decisions have no bearing on the points involved in this case and hence cannot be of any help to the learned counsel for the 2nd respondent. 6. 691) and Velayudhan v. Aishabi (1981 KLT. 629) two Full Bench decisions of this Court. But these decisions have no bearing on the points involved in this case and hence cannot be of any help to the learned counsel for the 2nd respondent. 6. For the reasons stated above, I hold that no application for purchase of kudikidappu under S.80B of the Kerala Land Reforms Act I of 1964 will lie in this case in view of the fact that the 2nd respondent did not paise the contention of kudikidappu before the Rent Control Court and hence the 1st respondent-Special Tahsildar had no jurisdiction to issue the injunction. Ext. P-5 is quashed. The original petition is allowed. No costs.