JUDGEMENT :- Defendants 3, 5 to 8 and 12 to 15 in a suit for redemption of a mortgage and for recovery of possession of the plaint schedule property are the appellants. They are the legal representatives of the deceased second defendant. The respondent is the plaintiff.

2. The plaint schedule property, having an extent of 68 cents with a building thereon, was mortgaged to one Kumara Pillai for an amount of Rs. 294/- on 7-1-1923 ME. The first defendant is an assignee of the rights of Kumara Pillai under the mortgage as per deed dated 6-12-1954, and be settled his rights over the plaint schedule property and three others to the second defendant by the deed of settlement Ext. D1, dated 6-11-1964. The suit was filed meanwhile for redemption and re­covery of possession, in the year 1961.

3. A preliminary decree for redemption was passed on 22-11-1962. The plaintiff thereafter filed I.A. No. 5885 of 1965 for the passing of final decree. At the initial stages, the only objection of the second defendant was regarding the value of improvements payable, but after the amendment to the Kerala Land Reforms Act, 1963 (the Act) by Act 35 of 1969, he raised additional objections claiming the benefit of deemed tenancy under S.4A(1)(b) of the said Act. His case was that he satisfied the prescribed requirement name­ly that the mortgage had constructed a building in the property for his own residence and that he was occupying the building for such purpose for a continuous period of not less than twenty years immediately preceding the commencement of the amending Act 35 of 1969, namely 1-1-1970. He also pleaded that he was not precluded by the proviso to the Section from claiming the benefit thereof as the extent of his other holdings was less than two acres as on the relevant date namely 16-8­-1968 when the Kerala Land Reforms (Am­endment) Bill 1968 was published in the Official Gazette.

4. The trial Court passed a final decree on 9-7-1970 holding that the second defendant was "possessed of more than two acres of land" and was not therefore entitled to fixity of tenure under S. 4A(1)(b) because of the exclusion contained in the proviso thereto. He did not go into the other question whether the mortgage had constructed a building for his own residence and whether he had occupied it continuously for not less than twenty years prior to 1-1-1970 - another requirement of S. 4A(1)(b) - apparently because of his view that the mortgage became disentitled to any benefit as his holdings exceeded two acres. An appeal A.S. No. 15 of 1971 was taken to the District Court, Alleppey by the second defendant, which was allowed and the matter remitted to the trial Court with a laconic judgement dated 18-12-1972. The judgement is significant for its brevity. The court noted that the only point arising for consideration was whether the second defendant was entitled to the benefits of S. 4A of the Act as amended. The court stated that the trial Court had, without adverting to the evidence on record, come to the finding that he was not entitled to fixity of tenure under the Act. He thereafter proceeded to state :

"......... but it is in evidence that the second defendant or his predecessor-in-interest has constructed the building for his own residence on the mortgage property and he was occu­pying such building for such purposes for a continuous period of not less than twenty years. I therefore find that the lower Court's finding is incorrect and it is set aside. The case is remanded to the lower Court for fresh disposal according to law."

5. There was no appeal from this order. After the matter came back, the Munsiff passed a revised judgement and final decree for redemption and recovery of possession on 18-7-1973. He held that the District Court had in the order of remand held that the second defendant had constructed the building for his own residence and that he was occupying the building for such purposes for a period of not less than 20 years. This finding had in the

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