Panchapakesa Ayyar, J.
1. The point for determination in this case is very simple. The suit property consisted of two items, one covered by a karaima chit, on which the petitioner had constructed a shop (as allowed by that chit itself) and was also living in the upstairs thereof. The other plot consisted of land on which he is alleged to have trespassed, and regarding which he is not setting up any tenancy of any kind. He applied for stay of the suit brought against him by the landlord regarding both these items. The lower Court held that the plot trespassed upon was clearly not covered by any tenancy under the Malabar Tenancy Act, and that even the other plot, covered by the karaima chit, could not be considered to be a case of tenancy, as a shop had been built on the land covered by it, and not a farm house, much less crops raised.
2. The learned Counsel for the petitioner confined his arguments before me to the case of the land covered by the karaima chit and frankly conceded that the land alleged to have been trespassed upon, and in any event not covered by any tenancy, would not be protected by the Act, and that the suit might go on regarding that land, even by splitting the suit into two parts. Regarding the land covered by the karaima chit, his case is that the land would come under the definition of' tenancy' and ' tenant' under Section 3(v) of the Malabar Tenancy Act, and that the lower Court was bound to grant the stay regarding that land under Act XVII of 1946. I agree. Section 3(v) clearly says that any person who has paid or has agreed to pay rent, or other consideration, for his being allowed by another, to enjoy the land of the Jatter, is a ' tenant.' It does not say that the enjoyment should be by cultivation on farm house alone. Section n, Clauses (1), (2) and (3) exclude certain lands from the scope of the Malabar Tenancy Act, but a land on which a petty shop is built is not exempted under any of those Sub-sections.
3. Besides, the petitioner claims to live in the upstairs of this very shop. So it is a house-cam-shop, a natural thing in a poverty-stricken country. I do not see how the petitioner can be denied the relief under the Malabar Tenancy Act simply because he chose to construct a shop on the plot and to live in it himself. A house in which an agriculturist lives and stocks his implements will not be excluded from the scope of the Act. In modern times, trade and industry are as important as agriculture, the primitive occupation of India's peasants. So, with the progress of the times, a person, whose contract of tenancy allows it, must be allowed to construct a shop on lands on which he could freely construct dwelling houses, manure dumps, stables, for cattle, etc. Indeed, he may even construct a tennis court, for recreation, if the contract allows it, without forfeiting his right to the tenancy, or losing his right to a ' stay ' of the suit.
4. In that view, I modify the order of the lower Court, and direct it to stay the suit so far as the land covered by the karaima chit is concerned, leaving it free to proceed with the suit regarding the alleged trespassed land, splitting it up, if necessary, from the other matter. In the peculiar circumstances, and as there appears to have been no ruling of the High Court so far regardng lands covered by karaima chits, I direct all the parties to bear their own costs.