Judgment :- S. Sankarasubban, J. Additional respondents 2 to 7 in O. A. 43 of 1986 of the Land Tribunal, Vaikom are the petitioners. The second respondent in the revision petition, Ouseph is the husband of the first petitioner Ouseph Anna, and the father of other petitioners. First respondent, Mathai Thomas, is the brother of the second respondent. They are children of two different fathers born through one mother. The first respondent filed an application for purchase of kudikidappu under S.80B of the Kerala Land Reforms Act, hereinafter referred to as "the Act". Originally he impleaded only the second respondent. Respondents 2 to 7, ie., the petitioner herein, got themselves impleaded on the basis of a gift deed in their favour by the second respondent. According to the petitioner in the O. A., he was allowed to construct a but for the purpose of his residence in the said property by his brother, the second respondent, and, accordingly, he is in possession of the property from June 3, 1980. He contended that he has no other property. Hence he applied for purchase under S.80B of the Act. Second respondent in the present revision petition is one Ouseph, who was the only respondent in the O. A. earlier, filed written statement. In the written statement he contended that the petitioner in the O. A. and himself were residing with their mother in another property till the mother died in 1982. In that property, which was being occupied as a kudikidappu, Ouseph Ouseph and the mother Annamma obtained purchase certificate for 10 cents. Thus, Ouseph Ouseph and Annamma each had right over 5 cents of property. After the mother died, the petitioner in the O.A. and Ouseph were entitled to half share in the mother's share. In other words, after the mother's death, the petitioner in the O.A. was entitled to 2.5 cents, while the first respondent in the O.A. was entitled to 7.5 cents. But, after the death of the mother some difference of opinion arose between the brothers. Petitioner in the O.A. wanted to live separately. The first respondent in the O.A. allowed the petitioner to construct a building in the petition schedule property on condition that the petitioner in the O.A. shall transfer his right, over 2.5 cents in the property, for which purchase certificate was obtained. Petitioner in the O.A. wanted to live separately. The first respondent in the O.A. allowed the petitioner to construct a building in the petition schedule property on condition that the petitioner in the O.A. shall transfer his right, over 2.5 cents in the property, for which purchase certificate was obtained. But, violating that agreement, the petitioner in the O.A. occupied a portion of the aforesaid property and constructed a building without the permission of the owners and he had not given up a right over 2.5 cents to the first respondent. The present petitioners were impleaded as respondents 2 to 7 when they obtained a gift deed from the first respondent in the O. A. In the written statement filed by them, it is contended that no consent was obtained for constructing a building in the petition schedule property. 2. The Land Tribunal and the Appellate Authority did not believe the case of the petitioner in the O.A. that he got possession of the property in 1980. On the other hand, the finding is to the effect that the petitioner would have got possession on between 1982 and 1983. Regarding the granting of permission, both the authorities took the view that since the respondents had not filed any petition to evict the petitioner, it can be inferred that the petitioner got possession of the land with the permission of the land owner. On that basis, the Land Tribunal and the Appellate Authority held that the petitioner in the O.A. was a kudikidappukaran and allowed the application. It is against that the present revision is filed. 3. The learned counsel for the petitioners contended that as per the definition of S.2(25) of the Act a person can be a 'kudikidappukaran', among other things, if he has been permitted to occupy a building or a land for the purpose of construction of building with or without the obligation to pay rent. No permission was given to the first respondent to construct the building in the property in question. On the other hand, the petitioner in the O.A. and the first respondent are brothers and after the death of their mother, her share in the kudikidappu devolved on bom of them. No permission was given to the first respondent to construct the building in the property in question. On the other hand, the petitioner in the O.A. and the first respondent are brothers and after the death of their mother, her share in the kudikidappu devolved on bom of them. In order to avoid family quarrel, the first respondent in the O. A. informed the petitioner that he will give 2.5 cents in his own property, provided he gives up his right in the property belonging to the mother and himself. The petitioner in the O. A. did not act as per the agreement; but he took possession of the property belonging to the first respondent and put up a hut. The counsel for the petitioners submitted that the burden is not on a kudikidappukaran to show that he was permitted by the owner of the land to occupy a portion of the land. The counsel submits that there is no evidence to show that consent was given. Further, the learned counsel submitted that the inference made by the authorities below on the ground that since the first respondent in the O. A. did not take any proceedings to evict the petitioner, the occupation can be deemed to be lawful, is not correct. The learned counsel submitted that a person has got 12 years of time for evicting a trespasser. The person who trespassed does not cease to be a trespasser because of the delay in filing a suit. It was thereafter, contended that permission given by near relations in order to have a family settlement will not be a permission coming under S.2(25) of the Act. The next contention of the counsel for the petitioners was that even according to the petitioner in the O. A. he got possession of the property only in 1980. Hence on the date of the Amendment Act, viz. 1-1-1970, he was not in possession of the property and, therefore, he was not entitled to any kudikidappu right. 6. The next question is that whether the petitioner is in possession on the basis of the consent given by the first respondent. The Land Tribunal and the Appellate Authority took the view that the petitioner is in occupation with the consent of the landlord on the ground that the first respondent has not taken any steps to evict the petitioner. The next question is that whether the petitioner is in possession on the basis of the consent given by the first respondent. The Land Tribunal and the Appellate Authority took the view that the petitioner is in occupation with the consent of the landlord on the ground that the first respondent has not taken any steps to evict the petitioner. I do not think, this reason can be supported. Firstly, if a trespass is made, it is not necessary that immediately steps should be taken to evict the trespasser. The first respondent has taken the contention in the written statement that there was conciliation. Secondly, the petitioner and the first respondent are brothers. In that event, one cannot say because immediately no steps were taken to evict the trespasser the possession was with consent. Hence that finding of the court below is not supported by any reason and I can very well say that the question whether consent has been obtained has been decided by the authorities below on an erroneous application of law. Hence, I am not able to uphold the orders of the court below that petitioner was occupying the land with permission. 7. This is a case where the fight is between two brothers, of course born to two different fathers. But it is in evidence that they were residing together with their mother till she died in 1982. After the death of the mother, 2.5 cents of land each devolved on the petitioner and the first respondent in the O. A. The first respondent, in addition to the property obtained by purchase certificate, has got another 5 cents. The written statement of the first respondent will show that there were some arrangements between the parties by which it was agreed that the brothers should start residing separately and it appears although the petitioner will be given 2.5 cents of land in the property belonging to the first respondent. It was in that circumstance that the petitioner got possession of the property in question. But I should say that the first respondent has also not adduced any evidence to prove the arrangement. But, there is another question that is coming up for consideration. Petitioner and first respondent are near relations. It cannot be said to be against human conduct for an elder brother to allow his younger brother to occupy a portion of his land. But, there is another question that is coming up for consideration. Petitioner and first respondent are near relations. It cannot be said to be against human conduct for an elder brother to allow his younger brother to occupy a portion of his land. That is out of affection towards brother. But, that cannot be taken advantage for the purpose of securing a right under the Act. If that is allowed, the result will be disastrous. The son may claim kudikidappu against the father and a wife may claim kudikidappu against the husband. That is not the intention of the Statute. In Janardhanan v. Chinna,1972 KLT 207, Madhavan Nair, J. had an occasion to decide a similar question. There the property was in possession of the mortgagees. The third defendant in the suit was a son of the elder brother of the mortgagee. He was put in possession by the mortgagees. He claimed kudikidappu right; but that was negatived by this Court. His Lordship observed thus: " A member of the mortgage'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 kudikidappukaran and to consequent fixity of occupation contemplated in the laws. In short, the expression "occupation' in the definition 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. The occupation by a member of the family of the mortgagee of a building on a mortgage property has to be construed as occupation by the mortgagee and not independent of him. Such a person is not entitled to any immunity as a kudikidappukaran". Hence, I am of the view that the authorities below were not correct in allowing the application to purchase. The Civil Revision Petition is allowed, setting aside the orders of the Courts below.