JUDGMENT

RAY, C.J.I :—This appeal is by certificate from the judgment dated 17th February, 1969 of the High Court of Kerala.

2. The respondent filed this suit against the appellant for recovery of property with arrears of rent and mesne profits and damages for waste.

3. The property measuring 550.37 acres consisted of 279.86 acres of planted area and the rest was unplanted area.

4. By a lease dated 7th October, 1950, the respondent leased out to the appellant the plantations together with Bungalow, quarters of what is described as "Beenachi Estate". The lease was for a period of 12 years with effect from 1st January. 1950. The rent for the first six years was fixed at Rs. 3,600 per annum. The rent for the second period of six years was fixed at Rs. 4, 500 per annum. The rent was payable in advance on 1st January of each calendar year.

5. The respondents case is that since 1953 the appellant failed and neglected to pay rent fixed under the lease. Clause 4 of the lease provided that if the rent would be in arrears and unpaid for 30 days after the same would become due it would be lawful for the lessor respondent to forfeit the lease notwithstanding the fact that the term had not expired. The lease provided that the respondent lessor would re-enter the premises in that event and the lease would cease and determine. The respondent by notice dated 5th March, 1959 called upon the appellant to quit, vacate and deliver to the respondent vacant possession of the property. The notice was consequent upon the wilful default of the appellant to pay rent and consequent on the several breaches of covenants as alleged in the notice.

6. The respondent filed the suit on 5th February, 1960. The respondent claimed possession of the property known as the Beenachi Estate together with movables, a declaration that the lease had determined and claimed arrears of rent, mesne profits a sum of Rs. 2, 20394 as damages for waste.

7. At the trial the appellant raised the plea that the tenancy is governed by the Malabar Tenancy Act, and, therefore, the suit is barred by Act 1 of 1957. The respondent pleaded that the tenancy is covered by exception in Section 2 (1) of the Malabar Tenancy Act VII of 1954. The trial Court accepted the preliminary objection of the appellant and dismissed the suit.

8. The High Court on appeal remanded the case to the Subordinate Judge for fresh trial. The trial Court on remand decreed the suit on 25th October, 1966. The respondent obtained a decree for eviction with arrears of rent and damages amounting to Rs. 1,00,000 for certain items and a further sum of Rs. 51,030 for other items of damages. The trial Court held that in view of the proviso to Section 3 (1) (vii) of the Kerala Land Reforms Act 1 of 1964 hereinafter referred to as the 1964 Act a tenant having fixity of tenure under the Act as it stood on 21st January 1961 would continue to enjoy it under the 1964 Act notwithstanding the fact that the landlord might be a corporation owned or controlled by the Government of India or by any State Government of India or by any State Government in India as provided in Section 3 (1) (c) of the 1964 Act. The appellant was held by the trial Court to be disentitled to resist the prayer for eviction in the suit because his holding was a plantation exceeding 30 acres in extent as provided in S. 3 (1) (vii) of the 1964 Act.

9. The appellant filed an appeal. The respondent filed cross-objections. The High Court dismissed the appellants appeal and allowed the cross-objections of the respondent. The High Court enhanced the damages from Rs.1,00,000 to Rs. 2,20,394 and confirmed the award of Rs. 51, 030 as damaged under other heads.

10. Counsel for the appellant contended that the High Court was in error in taking the view that the appellant was not entitled to claim fixity of teneure. Counsel for the appellant relied on Section 3 (1) (vii) of the 1964 Act as amended by Act 35 of 1969. Before the 1969 Amendment the 1964 Act provided in clause (vii) to