ARUMUGHA KONAR Vs. SANKU MUTHAMMAL

JUDGEMENT

(1.) These two appeals arias out of a suit, O. S. No. 437 of 1945 on the file of the Court of the District Munsif of Palghat instituted by a landlord to evict a tenant. The tenant came into possession under an earlier lease, but the lease which was concerned in the suit was Ex. P. 1 dated 17th December 1934. The contention of the tenant was that he was entitled to purchase the landlord's right in the kudiyiruppu under Section 33, Malabar Tenancy Act (Act XIV [14] of 1930) and he applied under that section for the necessary relief. The landlord resisted this application on the ground that for three years from 1943 to 1946, the date of the suit, there was no residential building at all on the site though there was one prior to 1943 and that, therefore, Section 33 had no application. The learned District Munsif found as a fact that there was no house on the site for three years prior to the date of the institution of the suit, and this finding was accepted also by the learned Subordinate Judge. The learned District Munsif on a construction of the definition of kudiyiruppu in the Malabar Tenancy Act held that as there was no building and as the site dispute was a vacant site the Act had no application. This decision was reversed by the learned Subordinate Judge on appeal. According to the learned Subordinate Judge it is enough under the section if there was continuous possession of a site on which there was a building at one time though the building ceased to exist as in the present case for a long period of three years.

(2.) The question that arises for consideration in these civil miscellaneous appeals is whether the view of the learned Subordinate Judge is correct. Section 33, Malabar Tenancy Act is in these words:

(3.) On behalf of the respondent, reliance was placed upon a decision of Rajamannar J., as he then was, in which the learned Judge had occasion to consider Section 33 of the Act. The residential building in that case belonged to the landlord till 1941 and he allowed the tenant in that year to pull down the house and construct a house of his own at his expense under an agreement by which the landlord undertook to pay to the tenant the value of the new house at the time of the surrender of possession of the site and the house. A new house was accordingly built by the tenant on the site and on the date of the suit there was a house on the site belonging to the tenant who claimed a right under Section 33 of the Act to purchase the site on which the house was constructed. The main contention on behalf of the landlord in that case was that the house till 1941 belonged to the landlord and, therefore, the period of ten years required under the section for acquisition of the right fell short. It must be remembered that in that case on the date of the suit there was a residential building on the site and that the superstructure was owned by the tenant. The site, therefore, was obviously a site of a residential building and the learned Judge had no difficulty in applying the definition of "kudiyiruppu" in the Act to the case and in concluding that under Section 33 the right to purchase had accrued to the tenant. The house in respect of which continuous occupation had to be proved need not necessarily be a house not owned by a landlord, if in fact, on the date of the application and the suit, the house belonged to the tenant. The site which was the site of a residential building, whether owned by the landlord or by the tenant, was in continuous occupation of the tenant for over ten years before the institution of the suit and, therefore, in that case the learned Judge held that the tenant was entitled to purchase the site under Section 33. In the present case there was no house at all on the date of the suit and even for a period of three years prior to the institution of the suit. In these circumstances it is impossible to hold that the tenant was in continuous possession during the requisite period of a site of a residential building within the meaning of the definition of 'kudiyiruppu" in the Act. In my opinion, there. fore, the view taken by the learned District Munsif was correct and the decision of the Subordinate Judge is erroneous.