PATHUMMA Vs. ABDURAHIMAN

JUDGEMENT

(1.) This Letters Patent Appeal arose out of a suit to recover possession of a house & paramba (land) from the tenant under a Kanom-kuzhikanom lease evidenced by Ext. D1 dated 17-8-1931. The plaintiff claimed the premises to be exempt from the operation of the Malabar Tenancy Act by virtue of S.2 (3) thereof. The learned Munsiff found the transaction to be a single kanom-kuzhikanom lease within the purview of the Malabar Tenancy Act, granted the defendants prayer for a renewal of the kanom in a connected proceeding, and dismissed this suit for eviction. The learned District Judge upheld the same. But when the matter was before the Madras High Court in Second Appeal, Krishnaswamy Naidu, J., took the view that a portion of the garden, about 35 cents in extent out of the total of 2 acres under demise, could be regarded as appurtenant to the building in the leased premises and therefore outside the provisions of the Malabar Tenancy Act, and granted a decree for eviction in respect of that portion, affirming the decree of the courts below with regard to the rest of the property. Hence this L.P. Appeal by the second defendant with leave of the learned Judge.

(2.) The Malabar Tenancy Act having been repealed by the Kerala Agrarian Relations Act, IV of 1961 which as mentioned in its S.92, is enacted to override all other laws in pari materia, the claim of the plaintiff for eviction of his tenant has hereafter to be determined only in accordance with the latter Act. The provision that corresponds with S.2 (3) of the Malabar Tenancy Act is in S.3 (ii) of Kerala Agrarian Relations Act; but they are not identical in scope. The former reads:

(3.) Thus, while the exemption from the old Act was in respect of any building of the landlord and the land appurtenant thereto, the exemption from the present Act is in respect of leases of buildings and the land appurtenant to it. The nature of the transaction between the landlord and the tenant was immaterial under the old Act, but it is the primary factor to be considered under the new Act.