JUDGMENT

Syed Shah Mohammed Quadri, J. -Leave is granted.

2. This appeal is from the judgment and order of the High Court of Kerala at Ernakulam in Second Appeal No. 835 of 1988-G dated September 4, 1997. The short but important question that arises for consideration is whether the appellant who has occupied the suit premises under a void lease, is entitled to the protection of Kerala Buildings (Lease and Rent Control) Act, 1965.

3. The facts, necessary to appreciate the question, may be set out briefly. The parties will be referred to as the appellant and respondents. The suit property was allotted to one Raman Namboodiri and others (proforma respondents 2 to 6 herein) in a family partition in the year 1974. From them the appellant took it on lease on a monthly rent of Rs. 140/- for a period of five years. A lease deed, Exh. B-3, was executed on January 14, 1974 but it was, however, not registered. Thereafter, the suit premises was purchased by the first respondent from (respondents 2 to 6) on December 2, 1974.

4. On March 24, 1975 respondents filed the suit (out of which this appeal arises) on the strength of title, for recovery of possession of the suit property and past and future mesne profits on the ground that the lease was void and they are entitled to get back the possession thereof. The appellant has contested the suit on the ground that he is the lessee of the suit premises; he paid the rent under Exh. B-3 till October, 1974 and as such he is entitled to the protection of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the Act ). The lease itself was void being in contravention of Section 107 of the Transfer of Property Act and the lease deed was inadmissible in evidence being in contravention of Section 49 of the Indian Registration Act. However, no plea was taken that independent of the void lease, by conduct of the parties in paying and accepting the rent every month till October 1974, a month to month tenancy came into existence.

5. The trial Court held that the appellant acquired no right which could be protected either under Section 53-A of the Transfer of Property Act or under the Act and thus decreed the suit of the respondents on February 9, 1976. On appeal by the appellant, the learned District Judge, Trichur, held that the appellant was a lessee entitled to the protection of the Act. The matter was carried in Second Appeal No. 803 of 1981 before the High Court. The High Court having held that the lease was void, remanded the case to the District Court to determine the question whether independent of the lease the appellant was in possession as a lessee on month to month tenancy.

6. After remand, the learned District Judge held that the facts and circumstances and the evidence adduced in the case would show that the parties intended to create a lease and there was relationship of landlord and tenant, notwithstanding the fact, that the lease deed was void. The matter was again carried in Second Appeal No. 835 of 1988-G to the High Court but this time by the respondents. The High Court held that the appellant had not proved that independent of the void lease, a relationship of landlord and tenant had come into existence between the pparties and in that view of the matter set aside the judgment of the learned District Judge and restored the judgment of the trial Court by allowing the Second Appeal on September 4, 1997. It is against that judgment and order of the High Court that the present appeal has been preferred.

7. Heard Mr. T.L.V. Iyer, learned senior counsel for the appellant and Mr. P. Krishnamoorthy, learned senior counsel for the respondents.

8. The question whether under a void lease relationship of landlord and tenant is created on acceptance of rent from the person in occupation of the demised property, fell for consideration of this Court in Hitkarini Sabha v. Jabalpur Municipality1. The question arose in the context of apportionment of the compensation for the acquired land which in