PUTHENVEETTIL THALASSERI VEETTIL AMMU AMMA Vs. CHELAKUTTIYIL KUNNAPADI KALAN, KARNAVAN AND MANAGER OF HIS TAVAZHI

JUDGEMENT

(1.) The short question involved in this appeal is whether the plaintiffs who are the appellants have established sufficient grounds for evicting the res-pondents from the suit property. That in turn depends upon the question whether the plaintiffs required the holding bonafide for their own cultivation or for that of any member of their family or tarwad or tavazhi who had a proprietary and beneficial interest in it. The learned District Judge after going into the evidence and the attendant circumstances found that the claim for eviction had not been substantiated. This finding is now attacked as being incorrect. As a finding of fact it is not open to the appellants to canvass it before the second appellate Court. It is therefore urged that the finding is not supported by any evidence whatsoever. The provisions of Clause (5) of Section 20 of the Malabar Tenancy Act of 1929 would seem to throw upon the landlord the onus of proving affirmatively that the holding is required bona fide for his own cultivation, etc. In the present case, beyond a recital in the plaint and a statement in the evidence of the kariasthan, there was no attempt at proving the aforesaid bona fide requirement. The recital in the plaint has been rightly held by the District Judge as not amounting to evidence. The kariasthan had hardly any competency to speak as he ceased to be the kariasthan fifteen years ago and all that he stated was that the plaintiffs wanted the plaint property to be in their possession since the rents were in arrears. That obviously is not the sine qua non required under the statute. Having failed to discharge the burden cast upon them by the law, the appellants tried to rely upon the stray statement in the evidence of the first defendant that it would be convenient for the plaintiffs to look after the plaint property if they recovered possession of it. As observed by the District Judge, the test of convenience is not the one that the law has prescribed. What has to be proved is that the holding is actually required for cultivation by the family itself bonafide. There is no evidence either of its being required for cultivation by the family or of its being so required bona fide. The District Judge was right in holding that the claim for eviction had not been substantiated by the plaintiffs. This discussion is with reference to Section 20, Clause (5) of the Act, as it stands this day, although it would appear that this clause has been substantially amended by an amending Act which is awaiting publication.

(2.) It is argued by the learned advocate for the appellants that they are entitled to maintain the claim for eviction under Clause (3) of Section 20 even if they fail under Clause (5). This contention was not advanced in any of the Courts below; nor was it raised specifically in the memorandum of appeal here. There is no merit in the contention either. Where it is a case falling within the category of cases covered by Clause (5) and where one of the requirements of that section is not satisfied, it is obviously not open to the party to fall back upon Clause (3), as if that could be done, in every case where the landlord failed to prove that he required the holding bona fide for his own cultivation, he could contend that Clause (3) would come to his aid and that he was entitled to evict the tenant. That obviously is repugnant to the entire scheme of the Act as well as of Section 20.

(3.) The next point argued is about the deposit. The finding of the learned District Judge on that matter is also a pure finding of fact and I see no reason to interfere.