Conditions for claiming right to purchase Kudiyiruppu.

These two appeals arise out of a suit, O. S. No. 437 of 1945 on the file of the Court of the District Munsif of Palghat instituted by a landlord to evict a tenant. The tenant came into possession under an earlier lease, but the lease which was concerned in the suit was Exhibit P-1, dated 17th December, 1934. The contention of the tenant was that he was entitled to purchase the landlord’s right in the kudiyiruppu under section 33 of the Malabar Tenancy Act (XIV of 1930) and he applied under that section for the necessary relief. The landlord resisted this application on the ground that for three years from 1943 to 1946, the date of the suit, there was no residential building at all on the site though there was one prior to 1943 and that therefore section 33 had no application. The learned District Munsif found as a fact that there was no house on the site for three years prior to the date of the institution of the suit, and this finding was accepted also by the learned Subordinate Judge. The learned District Munsif on a construction of the definition of kudiyiruppu in the Malabar Tenancy Act held that as there was no building and as the site in dispute was a vacant site the Act had no application. This decision was reversed by the learned Subordinate Judge on appeal. According to the learned Subordinate Judge it is enough under the section if there was continuous possession of a site on which there was a building at one time though the building ceased to exist as in the present case for a long period of three years.

The question that arises for consideration in these civil miscellaneous appeals is whether the view of the learned Subordinate Judge is correct. Section 33 of the Malabar Tenancy Act is in these words:

“In any suit for eviction relating wholly or in part to a kudiyiruppu, which has been in continuous occupation of a tenant or the members of his family for ten years on the date of the institution of the said suit, such tenant shall be entitled to offer to purchase the rights in the kudiyiruppu, of the landlord who seeks to evict him, at the market price on the said date.”

For an interpretation of the word “kudiyiruppu” we have to turn to section 3 which contains in sub-clause (m) the definition of “kudiyiruppu”:

“‘kudiyiruppu ‘means and includes the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building, and the easements attached thereto.”

On a perusal of this definition it will be evident that the object of enabling a tenant to purchase the rights in the kudiyiruppu is that he is the owner of the superstructure of a residential building and that the site which belongs to the landlord should also be acquired by the tenant with a view to prevent eviction from such site. The site in respect of which the right under section 33 can be claimed by the tenant is the site of a residential building or the site of any other house which is appurtenant to a residential building and in addition to such site the tenant is also entitled to acquire so much of the site which is necessary for the convenient enjoyment of a residential building and the easements attached thereto. The object clearly therefore is to make him the owner of the site on which a residential building is situate along with its appurtenances and the site that is necessary for the convenient enjoyment of such residential building. There must therefore be a residential building with a view to enable a tenant to acquire the right by purchase under section 33 of the Act. If it is merely a vacant site in which no house or residential building exists, it does not fall under the definition of “kudiyiruppu” and therefore section 33 does not apply. In the present case, in view of the concurrent finding of the Courts below that for three years from 1943 to 1946 there was no building or house on the land, it was a vacant site and merely becaus