Alfred Henry Lionel Leach, C.J.
1. This second appeal has been placed before a Bench because there are conflicting decisions of Judges sitting alone with regard to the interpretation of Section 20, Clause (5) of the Malabar Tenancy Act, 1929. Section 20 opens with these words:
No suit for eviction of a customary verumpattamdar, kuzhikanamdar or kanamdar shall lie at the instance of his landlord except on the following grounds.
2. There are six clauses in which the grounds are set out and' Clause (5) is in these terms:
That the period of the verumpattam, kanam or kuzhikanam, as the case may be, has expired and there has been no renewal and the landlord requires the holding bona fide for his own cultivation or for that of any member of his family or tarwad or tavazhi who has a proprietary and beneficial interest therein.
3. The question which falls for decision is whether the words 'requires the holding bona fide' mean that the jenmi may, in? the circumstances stated at the beginning of the clause, resume occupation if there is a genuine intention to cultivate or whether he must show a real need to do so.
4. In Raman Nayar v. Kesavan Embrandri
[S.A. No. 42 of 1939. The Judgment of Venkataramana Rao, J., of 3rd April, 1941, was as follows:
The only question argued by Mr. Govinda Menon in this Second Appeal is that the finding of the learned District Judge that the plaintiff requires the land bona fide for his cultivation is wrong because it is based on a wrong interpretation of Clause (5) of Section 14 of the Malabar Tenancy Act. After listening to the learned Counsel on both sides I am of opinion that the contention of Mr. Govinda Menon should prevail and that the case should be sent back for a revised finding. Section 14 so far as it is material for the decision in the appeal runs thus:
Section 14 : 'No suit for eviction of a cultivating verumpattamdar from his holding shall lie at the instance of his landlord except on the following grounds : Clause (5) : that, at the end of an agricultural year, the landlord requires the holding bona fide for his own cultivation or for that of any member of his family or tarwad or tavazhi who has a proprietary and beneficial interest therein
In construing this section it must be borne in mind that the object of the Malabar Tenancy Act is to confer a right of permanent occupancy on the tenant. It is with this object that the rule has been enunciated that no suit for eviction shall lie except on certain specified grounds. Therefore these exceptions must be strictly construed and the landlord who relies on a particular ground must satisfy the Court beyond reasonable doubt that that ground exists. Clause (5) has been enacted in the interest of the landlord to preserve to him the right to have the land for his own cultivation in cases where there is a real need or necessity for the landlord. The language used is 'requires the holding bona fide'. A mere desire on the part of the landlord even if bona fide, to have the land for his own cultivation is not enough and in coming to a conclusion on the question of the landlord's need being bona fide, the Court should in each case consider whether the circumstances are such that the land must be restored to the landlord for his own cultivation or cultivation by any member of the family or tarwad. The real test is the need of the landlord. In this connection I may refer to the observations of Buckland, J., in Rekhabchand Doogar v. J.R.D'Cruz 26 C.W.N. 499 a decision on Section 11 of the Calcutta Rent Act. The said section so far as it is relevant for the present discussion runs thus:
Notwithstanding anything contained in the Transfer of Property Act, 1882, the Presidency Small Cause Courts Act, 1882, or the Indian Contract Act, 1872 no order or decree for the recovery of possession shall be made so long as the tenant pays the rent to the full extent allowable by the Act and performs the conditions of the tenancy.
Provided nothing in this section shall apply * * * where the premises are bona fide required by the landlord either for purposes of building or rebuilding or for his own occupation or the occupation of any person for whose benefit the premises are held.
The learned Judge observed thus:
I do not think it is enough that a plaintiff in order to defeat a plea under the Calcutta Rent Act should merely say that he desires the premises bona fide for his occupation. The word in the Act is not 'desires' but 'requires'. This in my opinion involved something more than a mere wish and it involves an element of need to some extent at least.
I would place the same interpretation on the words 'requires the holding bona fide' in Clause (v) of Section 14 of the Malabar Tenancy Act. The learned District Judge seems to have fallen into an error in interpreting 'requires' as meaning 'desires'. This is how he observes:
It is stated by the learned District Munsif that he has got a better 'and which he could have cultivated instead of this. But he has to begin cultivation of one of the two lands and if he chose to begin with this how could it be considered that it was not a bona fide desire That the plaintiff has a bona fide desire to cultivate is apparent from the fact that even as early as 1934 in Ex. A the notice sent by him he had stated that he required the lands for his cultivation.
Therefore the view of the learned District Judge that a bona fide desire is enough to entitle the landlord to evict the tenant is not sound.
I accordingly set aside the finding of the learned Judge and call upon the Subordinate Judge of Calicut to submit a revised finding on the first issue in the suit in the light of the observations contained in this judgment. The finding will be submitted within four weeks of the receipt of this order by the lower Court. Time for objections is one week.
[After receipt of the finding the Court dismissed the suit and refused leave to appeal.]]
an unreported case, Venkataramana Rao, J., held that a mere desire on the part of the landlord to have the land for his own cultivation, even if bona fide is not enough. The learned Judge said that in coming to a conclusion on the question of the landlord's need being bona fide, the Court should in each case consider whether the circumstances are such that the land must be restored to the landlord for his own cultivation or cultivation by any member of the family or tarwad, the test being the need of the landlord. In forming this opinion the learned Judge placed reliance on the decision of the Calcutta High Court in Rekhabchand Doogar v. J.R. D'Cruz 26 C.W.N. 499. That was a case under the Calcutta Rent Act, Section 11 of which prohibited a landlord from recovering possession from a tenant so long as the tenant paid the rent to the full extent allowable by the Act and performed the conditions of the tenancy. The section incorporated a proviso giving the landlord the right to resume possession if the premises were required by him bona fide for purposes of building or rebuilding or for his own occupation or the occupation of any person for whose benefit the premises were held. A landlord wished to get possession of the premises from his tenant. The evidence disclosed that the landlord had let out the premises in which he was living to tenants and that the reason which he gave for requiring possession of the premises in suit, namely his wife's health, was not the real reason. We do not regard that decision as being really applicable. The Calcutta Rent Act was a measure designed to prevent profiteering in houses, the war of 1914-18 having resulted in a shortage of residential accommodation. The measure was merely intended to meet a position which was of a temporary nature. It is true that the Malabar Tenancy Act has the object of creating permanent tenancies but the circumstances are in no way analogous and we are unable to read the Malabar Tenancy Act in the same way as the Calcutta Rent Act was read in the case just referred to.
5. The same question arose in this Court in the case, Eerayi Achuthan v. Poochakkandi Panakat Khatheeja Bi
[S.A. No. 538 of 1939. The Judgment of King, J., of 9th April, 1941, was as follows:
The question at issue in this second appeal is whether the respondent, the jenmi, could evict the appellants, defendants 3 and 4, from certain property. According to the respondent, the actual tenant whose tenancy has been terminated by him is the first defendant to whom melcharth was granted, and the third and fourth defendants are holding under the first defendant. According to the appellants, the melcharth was never intended to take effect, there has been no change in the original tenancy of the third and fourth defendants and therefore as their tenancy has not yet been terminated they cannot be evicted in this suit.
The first point for decision was formulated by the learned District Judge of North Malabar thus : 'whether defendants 3 and 4 hold under the melcharth marupat executed by the first defendant in favour of the plaintiff on 14th March, 1920'. The finding is, 'I am satisfied, on a careful consideration of all these facts, that Ex. A was executed by the first defendant for and on behalf of defendants 3 and 4 and these defendants are now holding the property under it'. There can be no doubt that this is a finding of fact on which no interference is possible in second appeal.
The second question is whether the plaintiff requires the holding bona fide for her cultivation. That is the reason given by the plaintiff in support of her suit for eviction and it comes within the provisions of Sub-section (5) of Section 20 of the Malabar Tenancy Act. The learned District Judge has held that there is evidence on behalf of the plaintiff that she does require the property bona fide for her cultivation, and there are no circumstances proved in the case to show that that evidence is false. It must therefore be accepted and therefore the learned District Judge holds that the appellants may lawfully be evicted.
In appeal, I have been referred to a recent decision of Venkataramana Rao, J., in interpreting Section 20 (5) contained in an order of remand in S.A. No. 42 of 1939. Venkataramana Rao, J., follows a decision of the Calcutta High Court reported in Rekhabchand Doogar v. J.R. D'Cruz 26 C.W.N. 499 on the interpretation of a similar clause in the Calcutta Rent Act and lays stress upon that element in the meaning of the word 'requires' which involves need or necessity. He holds that it is not enough for the jenmi to say that he requires the land bona fide for his own cultivation but he must prove that he is in positive physical need of the land, or, in other words, that it is essential in his interests that he should cultivate the land. With great respect, I am unable to agree with this ruling. I find, on referring to the Oxford Dictionary, that the primary meaning of the word 'require', as is indeed clear from its Latin derivation, is to ask for or demand something and in this primary meaning, there is no element of need necessarily present. It must be in this sense that the word 'requires' is used in Sub-section (5) for, to my mind, if 'require' means, 'is in actual positive need', the expression, bona fide, in this sub-section is superfluous and can have no reasonable meaning. What is meant by a landlord requiring the holding bona fide is that he asks for or demands it bona fide. The expression 'bona fide' cannot apply to a state of circumstances but only to the statements or intentions or actions of a human being. All therefore that is necessary in my opinion is for the Court to decide whether when the landlord demands or asks for or sues for any land on the ground that he wishes to cultivate it himself, his statement that he wishes to cultivate it himself is a statement made bona fide. In the present case, the learned District Judge has held that in making this statement the plaintiff made it bona fide. That is a finding of fact which, on the interpretation of Section 20 (5) which I have just given, is conclusive.
I, therefore, am of opinion that this appeal must fail and it is accordingly dismissed with costs of the 1st respondent.
As my decision thus conflicts with the one recently given by my learned brother, Venkataramana Rao, J., I grant leave to appeal.]
which was decided by King, J. This judgment is also unreported. King, J., in discussing the meaning to be attached to 'bona fide' said:
The expression 'bona fide' cannot apply to a state of circumstances but only to the statements or intentions or actions of a human being. All therefore that is necessary in my opinion is for the Court to decide whether, when the landlord demands or asks for or sues for any land on the ground that he wishes to cultivate it himself, his statement that he wishes to cultivate it himself is a statement made bona fide.
6. We consider that this interpretation is the correct one. If the Court is convinced that the jenmi has really the intention of cultivating the land he is entitled to be put into possession of it. The fact that he has sufficient land under cultivation elsewhere to provide for the needs of himself and his family matters not. It is his land and if he really wants to cultivate it, he is entitled to regain possession when the kanom has expired and there has been no renewal.
7. In the present case both the Courts below have held that the jenmi had the bona fide intention of cultivating the land. That being so, the decree which has been granted to him cannot in our opinion be disturbed and the appeal will have to be dismissed with costs.