Korath Illath Vallappil Mammali Haji's son Kunheethu vs Vayyavinat Manakunnath Tavazhi Vasunni

Raghava Rao, J.—On a careful scrutiny of the plaint, I am perfectly clear that the suit out of which this second appeal arises was one laid u/s

20, Clause (5) of the Malabar Tenancy Act. If on the finding of the Courts below, the plaintiff failed to make out his right to evict on the allegations

in the plaint made with reference to Clause (5) of Section 20 of the Act, the only course for the Court to adopt seems to be as conceded by Mr.

Nambudiripad for the respondent to dismiss the suit. It will not, in such a case, be open to the plaintiff who has failed to make out the foundation

for the suit with reference to the requirements of Clause (5) of Section 20, to fall back upon the consideration that two of the three requirements of

Clause (5), which are the requirements of Clause (3), stand made out and that the suit must be dealt with as a suit under Clause (3) of Section 20

of the Act. So much has been ruled in this Court by the decision in Puthenveettil Thalasseri Veettil Ammu Amma and Others Vs. Chelakuttiyil

Kunnapadi Kalan, Karnavan and manager of his tavazhi and Another, and I am prepared to follow that decision as sound, although it occurred to

me strange, before I had the object and policy of the two particular-clauses expounded by counsel before me, that a suit which failed on the

allegations in Clause (5) of Section 20 of the Act should not be allowed to be considered with reference to the requirements of Clause (3) of

Section 20 of the Act which are the same as two out of the three requirements of Clause (5).

In the result the decrees of the Courts below are set aside and the plaintiff''s suit is dismissed. The second appeal is allowed with costs here and

in the Courts below.