ABDUL RAHIMAN Vs. KUNHAN

JUDGEMENT

(1.) The properties in dispute are the plots marked A, B, C, D and T in the Commissioner's plan Ext. C3, plot B and C being wet lands, plots A and D raised lands, pottas as they are called, and plot T, a tank. The appellants are in possession of these plots, the 1st appellant of plots A, D and T and the 2nd appellant of plots B and C under the leases Ext. B3 dated 5-2-1954 and Ext B2 dated 7-9-1949 from a landlord who had obtained delivery of the lands in execution of a decree for possession against his tenants and sub tenants. The 25th defendant in the suit (the 1st respondent herein) who had been impleaded on the averment that he was one of the sub tenants in possession took the decree in appeal claiming that he was entitled to fixity of tenure by reason of S.43 of the Malabar Tenancy Act. This appeal was allowed. The decree for possession was set aside. Thereupon the 25th defendant came with the present application for restitution under S.144, Civil Procedure Code and asked for delivery of the lands to him. That application has been allowed by the courts below and hence this second appeal.

(2.) Three grounds are urged on behalf of the appellants and all three are, as we shall presently see, untenable:

(3.) So far as the first ground is concerned it would indeed be a very strange result if a tenant for whose benefit S.43 of the Malabar Tenancy Act was enacted were to be deprived of that benefit by the simple expedient of a landlord who has obtained possession under a wrong decree, subsequently set aside, inducting other tenants on the property. (And, to proceed from the particular to the general, it would be equally strange if the right of a person, who has been dispossessed in execution of a wrong decree, to obtain restitution on the reversal of that decree, could be defeated by such an expedient). Nor does such a result follow from S.21 and 43 of the Malabar Tenancy Act, for, the two provisions read together make it clear that fixity, or, to put it otherwise, immunity from eviction, is given only to persons holding either directly, or through another person, under the person claiming eviction. It is no answer to a suit for eviction by one person to say that the defendant holds as a tenant under some other person and therefore has fixity. That cannot give the defendant fixity as against the plaintiff, and if such a suit fails it will be on account of the plaintiff's inability to prove his title, not because of any fixity acquired by the defendant. In this case the 1st appellant claims to be the holder of a kudiyiruppu, and the 2nd appellant a cultivating verumpattomdar, under the decree holder landlord; but the final decision in the suit was that the landlord was not entitled to possession as against the 25th defendant. It is only if the appellants can claim fixity under S.21 and 43 of the Malabar Tenancy Act as against the 25th defendant that they can succeed. That, as I have already shown, they cannot. Their claim is under a person who has been found to be not entitled to possession; and, since they are holders, subsequent to the wrong decree, under a person, the decree in whose favour has been reversed, on the very wording of S.144 of the Code of Civil Procedure, quite apart from any application of S.52 of the Transfer of Property Act, the appellants are bound to make restitution.