The central legal point established in the judgment is the interpretation of 'waste land' under S.4A and its relevance to claiming tenant status, emphasizing the character of the land and the capability of agricultural use.

1. The only point that really arises in this revision petition is as to the applicability of S.4A which was introduced by Act 9 of 1967 into Act 1 of 1964. The suit out of which this revision arises is one for redemption of a possessory mortgage. The mortgagee, encouraged by S.4A, requested that the proceedings be stayed because he claimed to be a deemed tenant within the meaning of S.4A. It is trite law that before a person can claim to be a tenant within the meaning of S.4 A he must fulfil four conditions, three of which are, at any rate, prima facie answers in favour of the mortgagee in the present case The disputed qualification is the one relating to the property comprised in the mortgage being waste land at the time of the mortgage.

2. Even at the outset I may state that the learned Munsiff was in error in pronouncing finally on the question as to whether the defendants were tenants under the Kerala Land Reforms Act because that was a conclusion to be reached after detailed investigation at the trial of the suit.

All that the Court has to consider in a stay petition is a prima facie case as to whether the petitioner before it is a tenant or not. It has been so held by a Division Bench of this Court and so the observation of the learned Munsiff "After hearing the parties and looking into the fresh evidence adduced in the case, I have come to the conclusion that the transaction in the present case is a tenure and defendants 1 and 2 are tenants and not mortgagees is inept.

He can only come to a tentative conclusion, a primafacie finding, and cannot foreclose his mind by these observations when the suit comes on for trial at a later stage. I dare say the Court when it tries the suit will dispose of the issue regarding tenancy untrammelled by the observations made by the learned Munsiff in these proceedings.

3. Now to the crucial question canvassed before me. Counsel for the revision-petitioner urged vehemently that the land in question was not waste land at the time of the mortgage. According to him there was a serious error of law in the approach made by the trial Court. I agree. This is what the learned Munsiff has observed in this connection:

"The suit property is 29 cents of land and Ext. P1 states that there are one bearing jack tree, two non-bearing ones, one mango tree, five bamboo groves and one Narakam. The mortgage deed further authorises the mortgagee to effect improvements. The number of trees is so negligible when compared to the extent of the property, and therefore the property can legitimately be considered as waste land."

The criticism made is that the Munsiff has inferred that the land is waste land because the trees standing thereon are few. It is a well founded criticism because whether a land is waste or not is to be ascertained from the character of the land and all that the statute means in the Explanation to S.4A (a) is that if a land is found to be a waste land that character is not nullified by the mere circumstance of the presence thereon of scattered trees. This Explanation cannot be construed to mean that even excellent garden land becomes waste land if there are only a few trees scattered thereon. The nature of the land has to be independently assessed and in the present case there is a house thereon, and attached to the house, as it were, there are various trees ordinarily found in a Kerala house compound, ancillary to the enjoyment of the homestead.

4. What is a waste land? There is no definition in the statute, but it is fairly clear that persons who, as mortgagees or otherwise, were allowed to improve land which was otherwise lying desolate, neglected or abandoned and who toiled thereon, made substantial improvements and thereby made it garden land or other fruitful holding, should be protected from eviction. This shows that at the time of the mortgage, when the mortgagee is inducted into possession, the land must be such as to be designated as neglected, uncultivated and not put to any