JUDGMENT
Raghava Rao, J.
1. On a careful scrutiny of the plaint, I am perfectly clear that the suit out of which this second appeal arises was one laid under Section 20 Clause (5), Malabar Tenancy Act. If, on the finding of the Courts below, the plaintiff failed to make out his right to evict on the allegations in the plaint made with reference to Clause (5) of Section 20 of the Act, the only course for the Court to adopt seems to be as conceded by Mr. Nambudiripad for the respondent to dismiss the suit. It will not, in such a case, be open to the plaintiff who has failed to make out the foundation for the suit with reference to the requirements of Clause (5) of Section 20, to fall back upon the consideration that two of the three requirements of Clause (5), which are the requirements of Clause (3), stand made out and that the suit must be dealt with as a suit under Clause (3) of Section 20 of the Act. So much has been ruled in this Court by the decision in Ammu Amma v. Kunnapadi Kalan Karnavan, 1946-1 M. L. J. 94 : (A. I. R. (33) 1946 Mad. 229) and I am prepared to follow that decision as sound, although it occurred to me strange, before I had the object and policy of the two particular clauses expounded by counsel before me, that a suit which failed on the allegations in Clause (5) of Section 20 of the Act should not be allowed to be considered with reference to the requirements of Clause (3) of Section 20 of the Act which are the same as two out of the three requirements of Clause (6).
2. In the result the decrees of the Courts below are set aside and the plaintiff’s suit is dismissed. The second appeal is allowed with costs here and in the Courts below. (Leave to appeal is refused).