Judgment :- 1. The petitioner before me is the 5th defendant in O. S. No. 52 of 1964. That was a suit for partition of the properties of a Marumakkathayam tarwad. In that suit the petitioner who is a member of the family had put forward a claim that several of the items included in the plaint schedule were being held by him as a tenant under the family and on this basis it was contended that his leasehold right over those items should be reserved while effecting the partition. This contention was fully gone into by the court which tried the suit and it was found that the claim advanced by the 5th defendant was not tenable or true. The court held that the 5th defendant was in possession of the concerned items only for and on behalf of the other members of the family under an arrangement whereby he had been entrusted with the task of cultivating those items on behalf of the members. The trial court accordingly passed a preliminary decree for partition of the properties without any reservation of the alleged tenancy rights put forward by the 5th defendant. Defendants Nos. 4 and 5 preferred an appeal before the Sub Court, Palghat challenging the legality and correctness of the preliminary decree passed by the trial court. The appellate court found that items 20 to 23 of the plaint schedule were not divisible as tarwad properties and that they were liable to be divided only among the persons who are parties to the document Ext. BI in proportion to the purchase money contributed by each. Excepting for the aforesaid modification the appellate court confirmed the finding of the trial court that all the other items included in the plaint schedule are liable to be partitioned without any reservation of the alleged tenancy right put forward by the petitioner. The trial court's judgment and decree were thus varied only in regard to items 20 to 23 of the plaint A schedule to the extent indicated above. 2. The trial court's judgment and decree were thus varied only in regard to items 20 to 23 of the plaint A schedule to the extent indicated above. 2. While the proceedings for passing of a final decree were pending before the trial court, the 5th defendant filed I. A. No. 1219 of 1971 before that court under S.108(2) of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) praying that the preliminary decree passed in the suit should be reopened and the questions raised by him in the suit should be decided afresh in accordance with the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by Act 35 of 1969. The principal contention advanced by him in respect of the said prayer was that the decree is one for his dispossession and that under the Kerala Land Reforms Act as amended by Act 35 of 1969 be Ss not liable to be dispossessed from the properties as he is entitled to be treated as a deemed tenant under S.7 of the said Act read with Explanation to the said section as amended by Act 35 of 1969. The lower court dismissed the said application holding that the decree passed in the partition suit on the basis of the finding that the petitioner 5th defendant was in possession of the properties only in his capacity as a member of the family, cannot be regarded as one for the dispossession of the petitioner and that, in any event, the petitioner is not a tenant coming within S.7 of Act 1 of 1964 as amended by Act 35 of 1959. This civil revision petition has been preferred by the 5th defendant challenging the order so passed by the learned Munsiff. 3. This civil revision petition has been preferred by the 5th defendant challenging the order so passed by the learned Munsiff. 3. S.108(2) of Act 35 of 1969 is in the following terms: "Any decree passed before the commencement of this section for the dispossession of a person from the land in his possession pursuant to which dispossession has not been effected, may, on the application of such person to the court which passed the decree be reopened and the matter may be disposed of in accordance with the provisions of the principal Act as amended by this Act." The provisions of this sub-section will be attracted only in case a decree for dispossession of a person from the land in his possession has been passed before its commencement. I am inclined to agree with the view taken by the Munsiff that the preliminary decree for partition which has been passed in the suit on the basis of the finding entered by the court that the 5th defendant was in possession of the properties in his capacity as a member of the family by virtue of his having been entrusted with the task of cultivating them on behalf of all the other numbers, cannot be regarded as a decree for the dispossession of the petitioner from those properties. Hence it is extremely doubtful whether the petitioner is a person who is competent to call in aid the provisions of S.108 (2) of Act 35 of 1969. It is, however, unnecessary to go into this matter in greater detail, because even on the merits I am satisfied that the dismissal of the application by the lower court was perfectly correct and proper. 4. The petitioner can succeed in the application for reopening the decree only if he makes out that he is a tenant entitled to the benefit of Act 1 of 1964. Reliance is placed by him in this connection only on S.7 of the Act as amended by Act 35 of 1969. 4. The petitioner can succeed in the application for reopening the decree only if he makes out that he is a tenant entitled to the benefit of Act 1 of 1964. Reliance is placed by him in this connection only on S.7 of the Act as amended by Act 35 of 1969. That section as it now stands reads: "Notwithstanding anything to the contrary contained in S.52 or any other provision of the Transfer of Property Act, 1882, or any other law, or in any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another situate in Malabar shall be deemed to be a tenant if be or his predecessor-in-interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967. Explanation; Notwithstanding anything contained in the Indian Evidence Act. 1872 where a person has been continuously in occupation of any such land for two years within the said period of twelve years, it shall be presumed until the contrary is proved that he has been in such occupation honestly believing himself to be a tenant." The petitioner contends that he has been continuously in occupation of the properties of the tarwad honestly believing himself to be a tenant for not less than two years within a period of 12 years immediately preceding the 11th day of April, 1967. He also relies strongly on the Explanation to the said section which obliges the court to draw a presumption that a person who has been continuously in occupation of the land of another for two years within the said period of 12 years has been in occupation honestly believing to be a tenant. The essential prerequisite for the applicability of S.7 is that a person should have been continuously in occupation of land belonging to another. Obviously, this condition is not satisfied in the present case. The petitioner is a co-owner of the properties and he has been in possession only of the lands belonging to himself and others. The essential prerequisite for the applicability of S.7 is that a person should have been continuously in occupation of land belonging to another. Obviously, this condition is not satisfied in the present case. The petitioner is a co-owner of the properties and he has been in possession only of the lands belonging to himself and others. In fact the finding recorded in the suit both by the trial court and by the appellate court is that the properties were in the possession of the family and the petitioner was only cultivating it for and on behalf of the family under an arrangement entered into between him and all the other members. In such circumstances it is impossible to say that the petitioner has been in occupation "of the land of another" so as to entitle him to invoke the provisions of S.7 of the Act. Moreover, the case put forward by the petitioner in the written statement filed by him in the suit was that he had tenancy rights over the properties under a specific lease arrangement setup by him. The court went into the question whether the tenancy pleaded by the 5th defendant (petitioner) was true and arrived at the finding that the lease was not true. In such circumstances, when the court has held that the specific lease put forward by him is not true it is not open to the party to rely on the provisions of S.7 and contend that he was honestly believing himself to be a tenant. A similar question came up for consideration in a case recently decided by my learned brother Subramonian Poti, J. reported in Kunhambu Nair v. Kunhammaru Amma (1973 KLT.1048). The following observations made by the learned judge may be usefully extracted: "Counsel for the defendant appellant urges that in any event he will be entitled to the protection of S.13 of Act 1 of 1964. In other words, according to him, he is a deemed tenant who is entitled to fixity of tenure. It is on S.7 of Act 1 of 1964 that reliance is placed by him to urge his case of tenancy. S.7 together with the explanation is in the following terms: It is true that the petitioner was in occupation of the property for more than 2 years within a period of twelve years immediately preceding the 11th day of April. 1967. S.7 together with the explanation is in the following terms: It is true that the petitioner was in occupation of the property for more than 2 years within a period of twelve years immediately preceding the 11th day of April. 1967. In fact he has been in possession all along at least since 1962, as is now found. But that is not sufficient to entitle him to claim the benefit of S.7. The most important requisite of that section is that the occupation must be under the honest belief that he is a tenant, and if the circumstances belie any belief on his part of being a tenant than there is no case to apply S.7. Where a person is found to be not holding under the arrangement of tenancy pleaded by him it would mean that he is not really a tenant and though be may profess to be a tenant he must know that the tenancy set up is false. Irrespective of his attempt to convince others that he is a tenant if be is really not a tenant, he cannot certainly say that be honestly believed that he is a tenant. The section applies to a different set of cases. May be that a person has taken a document of lease for a property which is ultimately found to be different from the property occupied pursuant to the lease. Such occupation may be under the honest impression that it is of the property leased. A person may take a lease from an incompetent person such as a de facto guardian of a minor whose properties cannot be alienated by such guardian. He may not know that in law his lease is void. He comes under this protection of the section. May be that a person takes a document which is bad due to other vitiating circumstances. Here again honest belief may save him. A person who comes into possession of a property, may believe that he is a tenant and that belief may be honest. In such a case law wants to give protection irrespective of whether he is really a tenant in law or not and irrespective of the character of his possession. Here again honest belief may save him. A person who comes into possession of a property, may believe that he is a tenant and that belief may be honest. In such a case law wants to give protection irrespective of whether he is really a tenant in law or not and irrespective of the character of his possession. If that be the case the one case to which, it can definitely be said, S.7 would not be applicable is the case where actually the defendant setting up a contention that be is a tenant knows that be is not one such. When he knows that be is not a tenant he cannot honestly believe that he is a tenant. If as a matter of fact the tenancy set up is false then the defendant, merely because be has set up the tenancy, could not have believed that there was such a tenancy. Now I will consider whether the explanation to the section makes any difference. I am referring to this because it is attempted by counsel Shri. Balasubramoniam rather very vehemently to contend that the explanation makes all the difference. It is true that the explanation allows a presumption to be made merely because of occupation of any person for a particular period that the occupation is under honest belief. But this presumption is not an irrebuttable presumption, it is a presumption until the contrary is proved. Contrary may be proved by evidence or by circumstances of the case. If as in the circumstances here the finding binding on the parties indicates that the defendant is really not a tenant the presumption stands automatically rebutted. Here is an adjudication as between the parties not in other proceedings but in the same proceedings and which is one of the questions for decision in the very appeal before the court that the defendant is not a lessee and that being the case the explanation will not be of any assistance. Therefore the benefit of S.7 will not be available to the defendant here." I am in complete agreement with the above statement of the law. It must then follow that the court below was fully right in holding that the petitioner is not a deemed tenant coming under S.7 of Act 1 of 1964 and that he is not, therefore, entitled to any relief under S.108 (2) of Act 35 of 1969. It must then follow that the court below was fully right in holding that the petitioner is not a deemed tenant coming under S.7 of Act 1 of 1964 and that he is not, therefore, entitled to any relief under S.108 (2) of Act 35 of 1969. 5. The civil revision petition fails and is dismissed with costs.