Arumugha Konar vs Sanku Muthammal

Satyanarayana Rao, J.—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 u/s 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.

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:

In any suit for eviction relating wholly or in part to a kudiyiruppu, which has been in the continuous occupation of a tenant or the members of his

family for ten years on the date of the institution of the said suit, such tenant shall be entitled to offer to purchase the rights in the kudiyiruppu, of the

landlord who seeks to evict him, at the market price on the said date.

For an interpretation of the word ""kudiyiruppu"" we have to turn to Section 3 which contains in Sub-clause (m) the definition of ''kudiyiruppu

''kudiyiruppu'' means and includes the site of any residential building, the site or sites of other buildings apartment thereto, such other lands as are

necessary for the convenient enjoyment of such residential building, and the easements attached thereto.

On a perusal of this definition, it will be evident that the object of enabling a tenant to purchase the rights in the kudiyiruppu is that he is the owner

of the superstructure of a residential building and that the site which belongs to the landlord should also be acquired by the tenant with a view to

prevent eviction from such site. The site in respect of which the right u/s 33 can be claimed by the tenant is the site of a residential building or the

site of any other house which is appurtenant to a residential building and in addition to such site the tenant is also entitled to acquire so much of the

site which is necessary for the convenient enjoyment of a residential building and the easements attached thereto. The object clearly, therefore, is to

make him the owner of the site on which a residential building is situate along with its appurtenances and the site that is necessary for the convenient

enjoyment of such residential building. There must, therefore, be a residential building with a view to enable a tenant to acquire the right by

purchase u/s 33 of the Act. If it is merely a vacant site in which no house or residential building exists, it does not fall under the definition of

kudiyiruppu"" and, therefore, Section 33 does not apply. In the present case, in view of the concurrent findings of the Courts below that for three

years from 1943 to 1916 there was no building or house on the land, it was a vacant site and merely because at some anterior period there was a

building which collapsed or ceased to exist the definition of ""kudiyiruppu"" does not apply and, therefore, the tenant is not entitled to apply u/s 33.

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 u/s 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 u/s 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 u/s

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.

The appeals are, therefore, allowed and the order of remand is set aside and the decree of the District Munsif restored with costs throughout.

No leave.