Raghava Rao, J.
1. In this second appeal and civil miscellaneoua second appeal, it is common ground that if the one is allowed, the other also must be allowed, and that if the one is dismissed, the other also muat be dismissed. The question argued is whether in a suit for eviction under Section 33, Malabar Tenancy Act, the tenant who prior thereto made a usufructuary mortgage of his holding in favour of another person and got back possession from the mort. gagee as lessee is entitled to plead his continuous occupation of the homestead for ten years as entitling him to offer to purchase the rights of the landlord. The Courts below have held that he is; Mr. Kuttikrishna Menon's argument is that he is not. The argument is put thisway:
'Suppose, the tenant had made a mortgage and not got She lease back; he would not have been entitled to offer to purchase the landlord's right. His situation does not stand improved by the lease back. Of course, bad the tenant made a simple, and not a usufructuary mortgage, he would have been entitled to offer to purchase the landlord's right. The test of the matter Is continuous occupation by the tenant as 'such, quoad the landlord. The occupation in question is really referable to the lease back from the mortgagee and not to the original tenancy between the plaintiff and the defendant.'
2. The fallasy of the argument is that admittedly the tenancy has not ceased by the subsequent transaction, which in their legal efficacy can only operate as derivative transaction on the basis of the subsistence of the original tenancy. It is urged for the appellant that if the usufructuary mortgagee sued the defendant, the defen-dant would be entitled to buy up the rights of the mortgagee as landlord, as held by this Court in Krishnan Nayar v. Pallikkal Mohideen : AIR1938Mad263 and that there cannot at the same time be a similar right on the part of the defendant against the plaintiff. The two rights are capable of concurrent existence and there is no anomaly much less legal impossibility.; about such coexistence. As the learned Subordinate Judge has put it,
'the respondent has been in continuous occupation of the property for ten years prior to the date of the suit and during the whole of that period, he has retained the position of a tenant under the plaintiff or her predeoessor-in-title.' -This second appeal and civil miscellaneous second appeal are therefore dismissed.
3. The respondent in second appeal No. 580 of 1947 will get his costa.