The main legal point established in the judgment is the interpretation of the provisions of Act XXXIII of 1951 regarding restoration of possession and the exemption of certain portions of the holding from eviction.

P.T. Raman Nayar, J.

1. This appeal and this revision petition are by the same person against the same order, an order made under section 52(1) of the Malabar Tenancy (Amendment) Act XXXIII of 1951. Uncertain which remedy really lay he has, by way of abundant caution, pursued both. The appeal was before the District Court, Kozhikode and it has been withdrawn to this court for hearing along with the revision petition.

2. The dispute is over a piece of land (a paramba) measuring 431/2 X 391/2 six foot koles, or 1.42 acres. There is a dwelling house in the property which was valued by the commissioner in 1948 at Rs. 198/- and odd. On 29-11-1944, the appellant revision-petitioner (whom I shall hereafter call the appellant) bought the jenmom right in the property. The property was at the time outstanding on kanom with the respondents, and, in O. S. 880 of 1945 of the District Munsiff's Court, Kozhikode, a suit instituted on 25-7-1945, the appellant obtained a decree for eviction against the respondents under section 20(5) of the Malabar Tenancy Act 1929 (hereinafter called the principal Act) as it then stood. The decree was made on 21-6-1948, after Madras Act XXIV of 1945 had come into force restricting the landlord's right to evict by requiring him to prove not merely that he wanted the holding bona fide for his own cultivation, but further that he needed it bona fide for the purpose of maintenance. On 4-9-1948 the appellant obtained possession in execution of the decree, and he still remains in possession.

3. On 1-8-1953, within one year of the commencement of Act XXXIII of 1951, the respondents made the present application, E. A. 216 of 1953, to be restored to the possession of the holding as tenants under section 52 of that Act. The application was dismissed by the first court on 22-3-1956, and the order of dismissal shows that the grounds alleged by the respondents for showing that the decree for eviction would not have been passed had Act XXXIII of 1951 been in force at the time were:

(1) that the landlord's right to obtain eviction on the ground of his own requirement had since been restricted; and

(2) that the appellant had no right to sue in eviction since two years had not elapsed from the date of his purchase as required by section 25(6) of the principal Act,--

the latter a prohibition first introduced by Act VIII of 1954, and therefore 1 of no avail in an application under section 52 of Act XXXIII of 1951. Both grounds were repelled. The respondents came up in revision in C. R. P. 1129 of 1956 (M), and it would appear from the order passed by this court in that case that the rejection of the two grounds taken before the first court was not questioned. What was urged and what found acceptance with this court was that the first court had completely ignored the second clause of the second proviso to section 20 of the principal Act (since, after Act VII of 1954, renumbered as section 25) introduced by Act XXXIII of 1951 to the effect that nothing contained in clauses 5 to 7 of that section -- clause 5 provided for the eviction of a kanamdar -- shall apply to the holding or that portion of the holding which consists of a kudiyiruppu. This court pointed out that the respondents had, in paragraph 9 of their application, stated that there was a kudiyirippu in the holding and that this statement was altogether denied by the appellant. This was a matter in respect of which Act XXXIII of 1951 had introduced a change which the first court had failed to notice. Therefore, this court allowed the revision petition and sent back the case to the first court for disposal after a proper enquiry into the question whether a kudiyirippu existed in the holding or not.

4. After the application went back to the lower court, the appellant filed a fresh counter affidavit on 16-9-1960 wherein he repeated his denial that there was any kudiyirippu in the holding and claimed that, in the event of an order for restoration he should be paid compensati