JUDGMENT P.T. Raman Nayar, J. 1. This appeal and this revision petition are by the same person against the same order, an order made under section 52(1) of the Malabar Tenancy (Amendment) Act XXXIII of 1951. Uncertain which remedy really lay he has, by way of abundant caution, pursued both. The appeal was before the District Court, Kozhikode and it has been withdrawn to this court for hearing along with the revision petition. 2. The dispute is over a piece of land (a paramba) measuring 431/2 X 391/2 six foot koles, or 1.42 acres. There is a dwelling house in the property which was valued by the commissioner in 1948 at Rs. 198/- and odd. On 29-11-1944, the appellant revision-petitioner (whom I shall hereafter call the appellant) bought the jenmom right in the property. The property was at the time outstanding on kanom with the respondents, and, in O. S. 880 of 1945 of the District Munsiff's Court, Kozhikode, a suit instituted on 25-7-1945, the appellant obtained a decree for eviction against the respondents under section 20(5) of the Malabar Tenancy Act 1929 (hereinafter called the principal Act) as it then stood. The decree was made on 21-6-1948, after Madras Act XXIV of 1945 had come into force restricting the landlord's right to evict by requiring him to prove not merely that he wanted the holding bona fide for his own cultivation, but further that he needed it bona fide for the purpose of maintenance. On 4-9-1948 the appellant obtained possession in execution of the decree, and he still remains in possession. 3. On 1-8-1953, within one year of the commencement of Act XXXIII of 1951, the respondents made the present application, E. A. 216 of 1953, to be restored to the possession of the holding as tenants under section 52 of that Act. On 4-9-1948 the appellant obtained possession in execution of the decree, and he still remains in possession. 3. On 1-8-1953, within one year of the commencement of Act XXXIII of 1951, the respondents made the present application, E. A. 216 of 1953, to be restored to the possession of the holding as tenants under section 52 of that Act. The application was dismissed by the first court on 22-3-1956, and the order of dismissal shows that the grounds alleged by the respondents for showing that the decree for eviction would not have been passed had Act XXXIII of 1951 been in force at the time were: (1) that the landlord's right to obtain eviction on the ground of his own requirement had since been restricted; and (2) that the appellant had no right to sue in eviction since two years had not elapsed from the date of his purchase as required by section 25(6) of the principal Act,-- the latter a prohibition first introduced by Act VIII of 1954, and therefore 1 of no avail in an application under section 52 of Act XXXIII of 1951. Both grounds were repelled. The respondents came up in revision in C. R. P. 1129 of 1956 (M), and it would appear from the order passed by this court in that case that the rejection of the two grounds taken before the first court was not questioned. What was urged and what found acceptance with this court was that the first court had completely ignored the second clause of the second proviso to section 20 of the principal Act (since, after Act VII of 1954, renumbered as section 25) introduced by Act XXXIII of 1951 to the effect that nothing contained in clauses 5 to 7 of that section -- clause 5 provided for the eviction of a kanamdar -- shall apply to the holding or that portion of the holding which consists of a kudiyiruppu. This court pointed out that the respondents had, in paragraph 9 of their application, stated that there was a kudiyirippu in the holding and that this statement was altogether denied by the appellant. This was a matter in respect of which Act XXXIII of 1951 had introduced a change which the first court had failed to notice. This court pointed out that the respondents had, in paragraph 9 of their application, stated that there was a kudiyirippu in the holding and that this statement was altogether denied by the appellant. This was a matter in respect of which Act XXXIII of 1951 had introduced a change which the first court had failed to notice. Therefore, this court allowed the revision petition and sent back the case to the first court for disposal after a proper enquiry into the question whether a kudiyirippu existed in the holding or not. 4. After the application went back to the lower court, the appellant filed a fresh counter affidavit on 16-9-1960 wherein he repeated his denial that there was any kudiyirippu in the holding and claimed that, in the event of an order for restoration he should be paid compensation for improvements. Both the appellant and the 1st respondent gave evidence, the former to the effect that although there was a house on the property the respondents were never living in it and that, even if the house were held to be their kudiyirippu, the kudiyirippu did not cover the entire holding, but only two or three cents at the most, and the latter to the effect that the house in the property was in the respondents' occupation at the time of the eviction and that the kudiyirippu covered the entire holding. It would appear that at the time of the arguments counsel for the appellant conceded that there was a kudiyirippu in the holding; but he pressed the point that it was only over a small portion of the holding and did not comprise the entire holding. He asked the court to determine the portion covered by the kudiyirippu, appointing a commissioner for the purpose, and contended that restoration should be ordered only of such portion. The court however declined to go into the question whether the kudiyirippu covered the entire holding or only a portion thereof saying that such an investigation was beyond the scope of section 52 of Act XXXIII of 1951, and holding, that if that Act had been in force when the decree was passed in the suit, the decree would not have been passed in the form it was passed, that is, for eviction from the whole of the holding; it allowed the respondents' application and directed restoration of the entire holding. It is against this order of restoration that the appellant has come up both by way of appeal as also by way of revision. 5. The question whether it is an appeal or a revision that lies is not altogether academic, for, the scope of the two proceedings is different. Act XXXIII of 1951 does not provide for an appeal against an order made under section 52 thereof, but it does provide for an application under that section being made to the ordinary civil courts. The rule as to whether an appeal lies in such circumstances was thus stated in Adaikappa v Chandrasekhara (A. I. R 1948 Privy Council page 12 at page 14): "The true rule is that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal: See 43 I. A. 192 and 63 I. A. 180." Their Lordships then went on to observe: "The question therefore to be considered in the present case is whether a right of appeal from the orders in question was conferred by the Civil Procedure Code", and, holding that the order was a decree within the meaning of section 2(2) of the Code, found that an appeal lay under section 96 of the Code. No different rule was laid down in Secretary of State v Rama Rao (A. I. R. 1916 Privy Council 21) where it was said at page 23 of the report: "It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the Statute just quoted. In Their Lordships' opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. In Their Lordships' opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply. X X X X "The claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation". This decision also enjoins an enquiry whether an appeal would be an ordinary incident of the litigation, in other words, whether an appeal would lie under the rules of the Civil Procedure Code. True, in that particular case, their Lordships held that an appeal lay from the order of the District Court although the proceedings were initiated not by way of suit, but by way of a claim made to the Forest Settlement Officer under section 6 of the Madras Forest Act so that the order of the District Court was scarcely a decree as defined by section 2(2) of the present Code. But then it must be remembered that the order made by the District Court was an order made in appeal and that the definition of "decree" in section 2 of the Code of 1882 which governed the case was different. It said, " 'decree' means the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit or appeal." The order by the District Court decided the appeal and was therefore a decree within the meaning of the Code of 1882 against which, under the provisions of that Code, an appeal lay. Neither Secretary of State v Rama Rao (A. I, R. 1916 Privy Council 21) nor any of the other numerous decisions cited before me by counsel for the appellant, including A. Arunachala v Ghulam Mahmood (A. I. R. 1959 Madras 191) and the dissenting judgment in Sankaran v Kochukutty (A. I. R, 1953 T. C. 591 FB) is authority for the wide proposition advanced by him that, where a civil court adjudicates any right, an appeal lies notwithstanding that the adjudication might not conform to the definition of a decree in section 2(2) of the Code. 6. That takes us to the question whether under the provisions of the Civil Procedure Code an appeal lies against the order we are considering. That depends on whether the order is a decree within the meaning of section 2(2) of the Code in which case undoubtedly an appeal lies under section 96 thereof. It is not pretended that the order is a determination of any question falling within section 47 of the Code, for execution of the decree has long since been completed and is unquestioned. The order does not relate to the execution, discharge or satisfaction of the decree but it directs redelivery of the property despite the decree. The question then is whether the order can be said to be an adjudication with regard to any matter in controversy in the suit. I do not think it can, since, obviously, an application under section 52 of Act XXXIII of 1951 is not a suit. That, under section 49 of the principal Act, the procedure provided as regards suits in the Code shall be followed as far as it can be made applicable in all proceedings relating to applications under the Act, cannot.have the effect of making the order we are now considering an order in a suit. In the first place this section does not in terms apply to section 52(1) of Act XXXIII of 1951 which is no part of the principal Act. In the first place this section does not in terms apply to section 52(1) of Act XXXIII of 1951 which is no part of the principal Act. Secondly, an appeal is a substantive right and not a mere matter of procedure, and that the procedure to be followed is the procedure in a suit can no more make an order passed on an application a decree appealable under section 96 of the Code, than section 141 of the Code itself has the effect of making orders passed in miscellaneous proceedings decrees against which appeals lie. Nor can it be said that the order is an adjudication in the suit for eviction. That suit is no longer pending, and an order under section 52 of Act XXXIII of 1951 does not in any way reopen the decree therein and make a fresh adjudication. The application under the section is a proceeding entirely independent of the suit for which the decree in the suit only provides a cause of action. As observed by me in Narayanan Namboodiri v Madhavi Amma (1961 K. L. J. 188) with reference to the similar provision in section 5(2) of Act XXII of 1956, "The section does not contemplate a reopening of the suit and a fresh decision based on the new law after allowing the parties to amend their pleadings and adduce fresh evidence. What it in fact does is to leave the decree in the suit untouched, but to reverse its effect by a new and independent order of restoration giving the holding back to the tenant with all his old rights". It might be that the substance of the matter is that the parties to the suit are to be put in the position they would have occupied had the new law been in force when the decree was made. But the form by which this is to be done is by an entirely independent application, in no sense an application in the suit, for reversing the effect of the decree. Therefore it cannot be said that the order now in question is an order adjudicating the rights of parties in a suit. It does not make any adjudication in the old proceeding, namely, the suit, and the new proceeding in which it does adjudicate is an application and not a suit. 7. In my opinion no appeal lies, only a revision does. 8. It does not make any adjudication in the old proceeding, namely, the suit, and the new proceeding in which it does adjudicate is an application and not a suit. 7. In my opinion no appeal lies, only a revision does. 8. For deciding whether there is a case for interference in revision certain statutory provisions will have to be considered : "Kudiyirippu" has been thus defined in section 3(17) of the principal Act: "(a) 'Kudiyirippu' means and includes the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building, and the easements attached thereto but does not include an ulkudi or kudikidappu; (b) 'Separate kudiyirppu' means a kudiyirippu which is the sole property comprised in a holding; (c) 'Separable kudiyirippu' means a kudiyirippu which is included with other property in a holding and which is not necessary for the convenient enjoyment, as usual, of any other part of the holding". What the second clause of the second proviso the section 20 of that Act to as stood on amendment by Act XXXIII of 1951 says is, "nothing contained in clauses 4 to 6 shall apply to the holding or that portion of the holding which consists of a kudiyirippu, a protected kudiyirippu or a kudikidappu". It is clause 4 of the section that provides for the eviction of a kanamdar on the ground of the landlord's need and the proviso just referred to makes it quite clear that when a kudiyirippu does not extend over the entire holding it is only that portion of the holding which consists of a kudiyirippu that is saved from eviction. Section 52(1) of Act XXXIII of 1951 itself runs thus : "52. Section 52(1) of Act XXXIII of 1951 itself runs thus : "52. (1) Where before the commencement of this Act, a landlord in the district of Malabar has obtained possession of a holding in execution of a decree passed by a Court on or after the 1st July 1942, under clause (5) or clause (6) of section 14 or under clause (5) or clause (6) of section 20 of the said Act and such decree would not have been passed if this Act had been in force at the time, the tenant shall be entitled to be restored to the possession of the holding with all the rights and subject to all the liabilities of a tenant, if he makes an application in that behalf to the Court which passed the decree within twelve months from the commencement of this Act: Provided that before such restoration is effected, the tenant shall be bound to return to the landlord (i) the value, if any, paid by the landlord to the tenant for his improvements (ii) the kanartham if any, and (iii) the value of the improvements, if any, effected bona fide by the landlord between the date on which he obtained possession of the holding and the date on which possession thereof is restored to the tenant." It is on the proper construction of this section that the case depends. It would appear that the section was not drafted with an eye to the case of a kudiyirippu extending over only a portion of the holding, a separable kudiyirippu to use the language of section 3(17) of the principal Act where the protection from eviction afforded by the proviso introduced by Act XXXIII of 1951 would not extend to the whole of the holding but only to a portion thereof. In the present case, if, in fact, the kudiyirippu as defined by section 3(17), namely, the site of the residential building and of such other lands as are necessary for the convenient enjoyment of such residential building, does not extend to the entire holding but only to a portion thereof, then the decree that would have been passed in the suit for eviction, had Act XXXIII of 1951 been in force at the time, would have been not for eviction from the entire holding but only from such portion thereof as was outside the kudiyirippu. The answer to the question asked by section 52(1) of Act XXXIII of 1951, namely, whether such a decree would not have been passed if that Act had been in force at the time, can be neither a "yes" nor a "no". The answer would be that such decree would not have been passed in respect of the portion constituting the kudiyirippu but that such decree would have been passed in respect of the remaining portion. I see no warrant for reading the section as if it said that restoration must be ordered if a decree for eviction would not have been passed in respect of any portion of the holding. On a strict construction, therefore, it might be possible to argue that in such a case the application must be dismissed since it lies on the tenant to show that such a decree would not have been passed, and he would have failed to show that if, in respect of a portion of the holding, such a decree would have been passed. I think, however, that the proper way of construing section 52(1) of Act XXXIII of 1951 in relation to a case like the present is to say that if such a decree would not have been passed in respect of the holding, whether of the whole or of any portion, then an order of restoration must be made in respect of the whole or that portion as the case may be, and I think it possible to read the words, "the holding" appearing in the clause, "the tenant shall be entitled to be restored to the possession of the holding" as meaning so much of the holding (whether the whole or only a portion) in respect of which the decree for eviction would not have been passed. It could never have been the intention that even if only a very small portion of the holding is covered by a kudiyirippu, to take an extreme example only five cents in a holding of 100 acres, still restoration must be ordered of the entire 100 acres although a decree for eviction would have been passed even under the new law in respect of the 99 acres 95 cents not covered by the kudiyirippu. 9. 9. In this view of the matter I think it was incumbent on the lower court to determine the question whether the kudiyirippu which was admitted to exist entended over the entire holding or whether it extended only over a portion of the holding. In declining to do so it failed to exercise a jurisdiction vested in it by law making its order liable to interference in revision under section 115(b) of the Code. 10. It is said that by his pleadings the appellant put forward no case what­soever that the kudiyirippu, the existence of which he at first denied but later conceded, constituted only a portion of the holding, that no such case was put forward by him in C. R. P. 1129 of 1956(M), and that therefore he cannot be heard to put forward such a case now. But the appellant did deny in both the counter affidavits he filed to the application that there was any kudiyirippu at all, and this denial I should think is wide enough to cover his present case that the kudiyirippu covers only a portion of the holding. In fact it is the respondents that did not specifically put forward the case of a kudiyirippu in their present application although they appear to have done so in paragraph 5 of their written statement in the suit. What they did say in their present application, in paragraph 9 thereof, was that they and their ancestors had been in possession of the land for over hundred years and had not merely been living in it but had also been burying their dead in it. This seems more a plea of hardship than a specific plea based on the second proviso to section 20 of the Act as it stood on amendment by Act XXXIII of 1951. But the facts necessary for the plea being alleged, the plea can always be taken. This seems more a plea of hardship than a specific plea based on the second proviso to section 20 of the Act as it stood on amendment by Act XXXIII of 1951. But the facts necessary for the plea being alleged, the plea can always be taken. In paragraph 4 of his first counter affidavit the appellant denied all the allegations in paragraph 9 of the application and, in the second counter affidavit filed on 16-9-1960, he asked that the respondent should be directed to take out a commission for ascertaining whether there was any kudiyirippu site at all in the property, a demand which seems to me to be wide enough to cover his present plea that the kudiyirippu covers only a portion of the holding and not the entire holding. Moreover, when it came to giving evidence, the 1st respondent on the one hand deposed that the holding was a separate kudiyirippu, in other words, that the whole of it was necessary for the convenient enjoyment of the residential house, whereas the appellant deposed to the effect that the house was a very small house and that at the most only two or three cents of land would be required for its convenient enjoyment. There can be no doubt therefore that, whatever be the defects in the pleadings on either side, the parties went to trial in this application on the averment on the one side that the entire holding was a kudiyirippu, and, on the other, that only portion thereof was a kudiyirippu. And, it seems to me that neither the arguments advanced in C. R. P. 1129 of 1956 (M) nor the order made therein, shuts out any enquiry into the question whether the whole of the holding or only a portion thereof is a kudiyirippu. 11. In the result, I allow the revision petition, set aside the order made by the lower court, and remand the application to it for fresh disposal. That court will now proceed to determine with the aid of a commissioner if necessary, whether the entire holding constitutes the kudiyirippu as that word is defined in S.3(17) of the principal Act, or whether, having regarding to that definition, it is only a portion of the holding that constitutes the kudiyirippu. That court will now proceed to determine with the aid of a commissioner if necessary, whether the entire holding constitutes the kudiyirippu as that word is defined in S.3(17) of the principal Act, or whether, having regarding to that definition, it is only a portion of the holding that constitutes the kudiyirippu. If it finds that the entire land is necessary for the convenient enjoyment of the residential building, in other words, that the entire land is a kudiyirippu, it will allow the application in entirety. But if it finds that only a portion of the holding is comprised by the site of the residential building -- there is only one building on the land -- and by such other lands as are necessary for the convenient enjoyment of the residential building, it will make an order for restoration only in respect of that portion and dismiss the application so far as the rest of the holding is concerned. In that event it will of course make the necessary apportionment of the kanam amount between the two portions, and pass suitable orders under the proviso to S.52(1) of Act XXXIII of 1951. 12. Both sides will be at liberty to adduce further evidence if they wish to, and the costs of this petition will abide the result. 13. I dismiss the appeal as incompetent but make no order as to costs therein.