The interpretation of Section 33 of the Malabar Tenancy Act and the qualification for availing the section based on the occupation of the house.

Walsh, J.

1. Though this appeal is tried as a civil miscellaneous Appeal, the decision in Seshammal v. Kuppanaiyangar AIR1926Mad475 , shows that such appeals stand on the same footing as second appeals with regard to their being arguable only on question of law. It is not therefore open to the appellant to contest the finding of fact that the site round the house in question is necessary for and has been used for the convenient enjoyment of the residence. It certainly cannot be said in the light of the Commissioners plan that there is no evidence for such a finding of fact. On the north and south of the house there is only a narrow strip of land, the distance between the southernmost extremity of the building and the southernmost boundary is only 1 and 3/4 kolea and the distance between the northern verandah and the northern boundary is 4 1/2 koles out of which a portion has to be deducted for the yard of the house. The fact that the tenant may have built a larger house on the property than he was allowed to build by the marupat of 1894 is of no avail if he comes within the specific words of Section 33 of the Act (Malabar Tenancy Act). It is admitted that he has been occupying the house in question for 10 years and there is no qualification in Section 33 which says that he cannot avail himself of this section if his occupation has not been in conformity with the original terms of the lease. In these circumstances I see no reason to allow this appeal which is dismissed with costs.