Judgment :- 1. The plaintiff in O. S. No. 876 of 1967 of the Second Additional Munsiff's Court, Trivandrum, is the appellant. Defendants 1 to 4 in the suit are the respondents. The suit was filed for removal of trespass and for recovery of the property scheduled to the plaint. The property scheduled to the plaint is a small portion about 4 cents in Survey Nos. 970 and 971, and the relief sought for is for recovery of about half a cent therein. The property belonged to one Subramonia Pillai. He sold it to Vaikundam Pillai on 5-10-1955. There was an agreement between Vaikundam Pillai and the plaintiff to purchase about 9 cents of land including the plaint property. This led to the filing of O. S.203 of 1957 by the plaintiff for specific performance against Vaikundam Pillai. He thereafter obtained conveyance through court as a result of Ext. A5 judgment dated 18-11-1963 in A. S. No. 1037 of 1959 of the High Court. The plaintiff obtained possession on 15-10-1968. This suit was filed just prior to the said recovery of possession of the property scheduled in p. S. No. 203 of 1957, for the small portion in Sy. Nos. 970 and 971. Earlier, the 1st defendant immediately after the sale by Subramonia Pillai to Vaikundam Pillai on 5-10-1955, filed O. S.11 of 1956 (Ext. BI) in the District Court, Trivandrum against Subramonia Pillai, Vaikundam Pillai, the plaintiff herein and others. In the said suit, the Ist defendant herein contended that Subramonia Pillai was not competent to alienate the property since he had agreed to give the property to the 1st defendant and her children. That suit was dismissed for non-prosecution. Alleging that the 1st defendant trespassed into the property on 4-11-1955 the suit was laid for recovery of the small portion in Sy. Nos. 970 and 971. 2. The defendants resisted the suit, the 1st defendant claiming independent title. She contended that her father constructed the building in pursuance to permission given by Subramonia Pillai's father. They pleaded that they were in occupation of the building several years before the suit and the plaintiff's title, if any, is lost by adverse possession. Defendants also claim kudikidappu rights and claimed protection against eviction. 3. The trial court accepted the plaintiff's title. The plea of limitation and adverse possession of the defendants was rejected. They pleaded that they were in occupation of the building several years before the suit and the plaintiff's title, if any, is lost by adverse possession. Defendants also claim kudikidappu rights and claimed protection against eviction. 3. The trial court accepted the plaintiff's title. The plea of limitation and adverse possession of the defendants was rejected. The suit was decreed, finding that the defendants unlawfully trespassed into the plaint property as mentioned by the plaintiff. The defendants filed A.S. 624 of 1972 before the District Court, Trivandrum. The appellate court held in favour of the plaintiff regarding title, and also negatived the defendants' plea of limitation and adverse possession. But the appellate court was of the view that the 1st defendant is residing in the plaint schedule property with permission and that the schedule building is a hut. She was treated as kudikidappukari and it was declared that she is not liable to be evicted. The plaintiff has come up in Second Appeal. 4. Counsel for the appellant, Mr. S. Narayanan Poti, assailed the reasoning and conclusion of the lower appellate court in holding that the 1st defendant is a kudikidappukari and so not liable to be evicted. The lower appellate court relied on Exts. BI, B2 and B3 to find that the residence of the 1st defendant in the schedule building started on permission and not on trespass and that she is entitled to the kudikidappu rights. Ext. BI is the plaint in O. S. No. H of 1956 dated 25-1-1956. Ext. B2 is the copy of the written-statement of the 7th defendant therein (plaintiff in this suit, dated 9-3-1956). Ext. B3 is the copy of the written-statement of the 2nd defendant in that suit, Vaikundam Pillai. According to the appellant's counsel, the legal requirement of "kudikidappu" as enjoined by the Statute was lost sight of by the lower appellate court and the three documents. Exts. BI, B2 and B3, have been mis-interpreted and mis¬understood in material particulars to find against the plaintiff and to hold that the 1st defendant is a Kudikidappukari and that the reasoning and conclusion of the lower appellate court in this regard is vitiated, and the lower appellate court has in tact ignored the inconsistent case set up by the defendants. BI, B2 and B3, have been mis-interpreted and mis¬understood in material particulars to find against the plaintiff and to hold that the 1st defendant is a Kudikidappukari and that the reasoning and conclusion of the lower appellate court in this regard is vitiated, and the lower appellate court has in tact ignored the inconsistent case set up by the defendants. According to the respondent's counsel, the documents aforesaid will show that the 1st defendant was in occupation of the schedule property and the building and the nature and character of occupation, whether permissive or otherwise is irrelevant. Since the 1st defendant was in occupation as could be seen from Exts. BI, B2, and B3, the reasoning and conclusion of the lower appellate court to hold in her favour is justified. 5. Having heard counsel appearing for both parties, I am of the view that the approach and conclusion of the lower appellate court is unsustainable. It is important to note that in this suit the specific plea of defendants 1 to 4 in the written statement was that their father, the 5th defendant, constructed the building as per permission given by Subramonia Pillai's father and that defendants 1 to 4 are residing therein with the 5th defendant. That is the foundation laid in the case to explain her possession or occupation of the building. Para 9 of the written statement is specific in this regard. The 1st defendant has also deposed to that effect as Dwl. It is for the 1st defendant to prove such a plea. It is common ground that the said plea is not established in this case. Nor was such a case urged in this appeal. No other alternate case was put up in the written-statement. In Ext. BI (O. S.11 of 1956) the 1st defendant as plaintiff claimed that she and her children were in occupation of one of the buildings mentioned in the plaint along with her husband Subramonia Pillai, on a promise made by him (Subramonia Pillai) to make a gift of the properties and the buildings covered by the suit to her for the livelihood of herself and her children. (Para 2 of Ext. BI). In Exts. B2 and B3, written statements in the former suit, the 1st defendant's occupation was not denied. It is this factor that has been relied on by the lower appellate court. (Para 2 of Ext. BI). In Exts. B2 and B3, written statements in the former suit, the 1st defendant's occupation was not denied. It is this factor that has been relied on by the lower appellate court. But the lower appellate court failed to note that the occupation that was pleaded in the suit (Ext. BI) was that the 1st defendant was in occupation along with her husband Subramania Pillai in pursuance to a promise held out by Subramonia Pillai to make a gift of the properties and the buildings to the 1st defendant. No case of independent possession or occupation was ever pleaded or even suggested. The occupation pleaded was not "de hors" her husband, Subramonia Pillai. Para.2 of Ext. BI, plaint is specific in this regard. It is clear from the evidence of dw.3 Subramonia Pillai that himself and the 1st defendant lived as husband and wife and that they have two children. The question that falls to be considered is whether such an occupation by the 1st defendant of the building is sufficient in law to constitute her kudikidappukari. In Perila Janardhanan v. Vellachi Chinna (1972 KLT. 207), Madhavan Nair J. held: "Kudikappukaran, as defined in the Land Reforms Act and its accessory enactments, like the Act IX of 1967, must have occupation of a portion of any land or of a but in his own right. A person in occupation by virtue of a right vested in another, e. g. a wife, child, member of the family, or servant residing in a building or outhouse in virtue of a right in the husband, parent, manager of the family or master, cannot claim the status of a kudikidappukaran. A member of the mortgagee's family occupying a building on the mortgage property or a member of a tenant's family occupying a building on the leasehold, cannot be said to have such an occupation of the building as would entitle him to the status of a kudikidappukaran and to consequent fixity of occupation contemplated in the laws. In short, the expression "occupation" in the definition of "kudikidappukaran" means occupation in one's own right and not occupation in virtue of a right of another, or of a right common to him and the person who permitted his occupation. Duality of persons in the permitter and the permitted is an essential feature of a'kudikidappu'. In short, the expression "occupation" in the definition of "kudikidappukaran" means occupation in one's own right and not occupation in virtue of a right of another, or of a right common to him and the person who permitted his occupation. Duality of persons in the permitter and the permitted is an essential feature of a'kudikidappu'. It will be a fraud on law for a mortgagee to put a near relative of his in occupation of building on the mortgage-property to entitle the latter to fixity of occupation and consequent immunity from eviction on redumption of the mortgage; it is in effect the ouster of a needy person out of his property, which law always regarded as unconscionable." (Emphasis supplied) 6. In the light of the above decision, on a fair and reasonable construction of Exts. BI, B2 and B3, it is not possible to hold that the occupation by the 1st defendant is independent or in her own right but could only be an occupation by virtue of a right vested in her husband, Subramonia Pillai. She was staying with her husband Subramonia Pillai and as permitted by him. This is totally insufficient to claim kudikidappu right. The lower appellate court has failed to give proper effect to the requirements of the relevant statutory provision, S.2(25)(a) and (b) and Explanation IIA, in the light of the decision of this court referred to above; and in particular, the" meaning to be given to the word 'occupation' occurring in the relevant statutory provision as interpreted in Perila Janardhanan's case (1972 KLT. 207) has been completely ignored by the lower appellate court. The relevant statutory provisions are to the following effect:- (S. 2(25) of the Kerala Land Reforms Act, 1964) "2(25). 207) has been completely ignored by the lower appellate court. The relevant statutory provisions are to the following effect:- (S. 2(25) of the Kerala Land Reforms Act, 1964) "2(25). "Kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any Panchayat area or township, in possession either as owner or as tenant, on which he 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 in 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: Explanation II-A: 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 Ist day of January, 1970, shall be deemed to be a kudikidappukaran :" 7. It should also be mentioned that the finding and conclusion of the lower appellate court to hold that the Ist defendant is entitled to kudikidappu right is on the basis of Exts. BI, B2 and B3. Such a case was never pleaded in the written-statement. The case found by the lower appellate court militates against the specific case set up in the written-statement. The lower appellate court has found a different case from the one pleaded. What was pleaded was that the 5th defendant, father of defendants 1 to 4, put up a building in the plaint schedule property as per permission given by Subramonia Pillai's father and that defendants 1 to 4 were residing with him. Such a case was not proved nor attempted to be proved. That case was given a go bye. What was pleaded was that the 5th defendant, father of defendants 1 to 4, put up a building in the plaint schedule property as per permission given by Subramonia Pillai's father and that defendants 1 to 4 were residing with him. Such a case was not proved nor attempted to be proved. That case was given a go bye. The lower appellate court ignoring such a plea, travelled outside the pleadings and made out a new and different case on the basis of Exts. BI, B2 and B3. This is not permissible. So, the finding and conclusion of the lower appellate court that the Ist defendant is entitled to kudikidappu right is clearly a legal error and deserves to be vacated. I hereby do so. That was the only ground on which the judgment of the trial court was reversed. Since the basis on which the lower appellate court found that the Ist defendant is entitled to kudikidappu right, is vacated, it follows that the decree of the trial court should stand restored and it is declared accordingly. 8. Counsel for the respondents contended that in view of S.2(25) read along with Explanation II-A of the Kerala Land Reforms Act as interpreted by this court in Velayudhan v. Aishabi (1981 KLT. 529 FB), occupation of any kind, lawful or unlawful, permissive or otherwise, is sufficient to clothe the Ist defendant with the right of kudikidappu. The nature and character of occupation do not call for an enquiry. Says counsel, that if on a reading of Exts, BI, B2 and B3, it could be seen that the Ist defendant was in occupation, the trespass alleged in the plaint will fall to the ground and in view of the long occupation by the Ist defendant, she will be entitled to kudikidappu right. It was also faintly suggested that dw.1 had terminated her marital relationship with Subramonia Pillai 16 years before Ext. BI (by about 1940) and so the occupation of the 1st defendant pleaded in Ext. BI proceedings could be considered to be independent. This argument ignores the admissions of the 1st defendant as Dw.1 and those of dw. 3. It was also faintly suggested that dw.1 had terminated her marital relationship with Subramonia Pillai 16 years before Ext. BI (by about 1940) and so the occupation of the 1st defendant pleaded in Ext. BI proceedings could be considered to be independent. This argument ignores the admissions of the 1st defendant as Dw.1 and those of dw. 3. On 20-1-1972 when the 1st defendant gave evidence in the trial court she has given her age as 37 and so she should have been born only in 1935, She has categorically admitted that herself and Subramonia Pillai were husband and wife and they were married twenty years ago (1952). Ext. B6, school register dated 27-10-1961, shows that Kumari Snehalatha born on 21-5-1955, admitted in the school on 30-5-1961, is the daughter of Subramonia Pillai. Ext. B6 is produced and proved by Ist defendant, as Dw.1. Dw.1 admits that Subramonia Pillai and herself were husband and wife. The facts brought out in the deposition of dw. 1, taken along with Ext. B6, certified copy of the School Register, conclusively prove that the 1st defendant and Subramonia Pillai were living as husband and wife on the date of Ext. BI proceedings. (1956). On this basis, and on a fair construction of Exts. BI, B2 and B3, it could only be said that the 1st defendant was in occupation along with her husband and the decision reported in Perila Janardhanan's case (1972 KLT. 207) squarely applies to the facts of this case. It is true, as held by the Full Bench in Velayudhan's case (1981 KLT. 529) that the source or genesis of possession is irrelevant; but nonetheless the occupation, whether lawful or unlawful, should be by the person who claims kudikidappu rights, in his or her own right. It should be an independent right. The decision reported in Perila Janardhanan's case (1972 KLT. 207) has got relevance in that sense and context. Such an aspect was not considered nor was germane to the case pleaded in Velayudhan's case (1981 KLT 529. FB). I do not find any observation in the Full Bench decision to militate against the decision of Madhavan Nair, J. reported in Perila Janardhanan's case (1972 KLT. 207) in that regard. So I reject the contention of the respondent's counsel that the decision reported in Perila Janardhanan's case (1972 KLT. 207) will not apply to the facts of this case. 9. 207) in that regard. So I reject the contention of the respondent's counsel that the decision reported in Perila Janardhanan's case (1972 KLT. 207) will not apply to the facts of this case. 9. In the light of the above, the judgment and decree of the lower appellate court are set aside. The judgment and decree of the trial court are restored. The Second Appeal is allowed. In the circumstances of the case there shall be no order as to costs. Allowed.