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Judgment
Walsh, J.—Though this appeal is tried as a civil miscellaneous Appeal, the decision in Seshammal and Others Vs. Kuppanaiyyangar and
Another, , 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 Commissioner''s 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.