PATHAKUTTY AMMA Vs. CHATHUKUTTY

JUDGEMENT

(1.) This Second Appeal was originally filed as C. R. P. 331/59 and the Petitioners in the said C. R. P., had filed an application C. M. P. 3284/59 for converting the C. R. P. into an S. A., and by my order dtd. 7/8/59, I allowed the C. R. P. to be converted into an S. A.

(2.) Respondents 2 and 3 in E. A. 42/1955 on the file of the court of the District Munsiff, Kozhikode, are the appellants in this Second Appeal. The first '. respondent in E. A. 42/1955 had obtained a decree for eviction in O. S. 830/1943 of his tenants, who were the petitioners in the said E. A. 42/55. A decree for eviction was passed on 20/1/1945 by the Trial Court. But the said decree was reversed by the appellate court. But before the reversal of the decree by the appellate court, the plaintiff in O. S. 830/1943 (the first respondent in the E. A.) obtained actual possession of the property on 19/2/1945 and he leased the properties, on 20/6/1945, to the appellants before me, who were respondents 2 and 3 in E. A. 42/1955.

(3.) After the reversal of the Trial Court's decree by the appellate court, the original tenants filed E. A. 42/1955 for restitution and also claimed mesne profits. The plaintiff in the suit was the first respondent, and the appellants before me, were respondents 2 and 3 in the said E. A. 42/55. Both the plaintiff and the appellants resisted the application of the original tenants for restitution. In particular, the appellants claimed protection under S.43 of the Malabar Tenancy Act. According to them, no restitution can be granted when rights of third parties have intervened; and the plaintiff, whose rights were declared at least by the first court's decree, was competent to lease the properties in favour of the appellants. In consequence, they pleaded that they are entitled to fixity of tenure as tenants and as such, they cannot be evicted by way of restitution. They also pleaded that they are not liable for mesne profits and they further pleaded that in case of eviction, they are entitled to be paid their compensation for the value of improvements effected by them during the period 20/6/1945 to 11/11/54.