ORDER

First appellant is a firm which claims a right under Section 106 of the Kerala Land Reforms Act in respect of the suit property when the first respondent-plaintiff filed a petition for eviction of the appellants under certain Sections of the Kerala Building (Lease and Rent Control) Act, 1965. The Rent Control Court felt that the contention raised by the tenant claiming permanent tenancy requires to be considered in a regular civil suit. Thereupon parties were directed to approach the civil court. Pursuant to the said direction first respondent filed the suit for eviction under Section 11(3) and 11(4)(i) of the Kerala Building (Lease and Rent Control) Act. As the appellants, in their written statement raised a claim of permanent tenancy based on Section 106 of the Kerala Land Reforms Act, the question was referred to a Land Tribunal as required under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal decided the question in favour of the appellant and sent the records back to the civil court. Subsequently civil court dismissed the suit filed by the first respondent.

2. The matter was taken up before the First Appellate Court at the instance of the first respondent and that court confirmed the decision of the first court and dismissed the appeal. Then first respondent moved the High Court in Second Appeal. A Division Bench of the High Court of Kerala set aside the decree of the two courts below and allowed the second Appeal and decreed the suit for eviction as per the impugned judgment.

3. The main reasoning adopted by the Division Bench of the High Court is that though there was an earlier lease prior to 1956 the same was surrendered by the tenants as per Ext. B-9 dated 14.4.1956 and even that was surrendered subsequently as per the Ext. A-2 dated 1.1.1962. When the original lease was surrendered the tenants of that lease cannot claim right under Section 106 of the Kerala Land Reforms Act, according to the Division Bench of the High Court.

4. Shri. T.L.V. Iyer, learned senior counsel arguing for the appellant contended that neither Ext. B-9 nor Ext. A-2 could have been used by the High Court as both of them were described as lease deeds for periods more than one year and they were unregistered documents and hence inadmissible evidence. He alternatively contended that those documents could not have created or extinguished any right and Section 49 of the Registration Act was a bar against admissibility of those documents.

5. Although the second Appeal was admitted by the High Court on the questions of law formulated by the first respondent in the memorandum of appeal filed before the High Court, we have noticed that the Division Bench has not considered any of those questions.

6. The three questions formulated by the first respondent in the memorandum of appeal are the following :

"A. when a fresh lease is executed under which the quandom tenant expressly surrenders in properly under the previous lease, is not the lessee bound by the terms if the fresh lease as a fresh demise?

B. If in the earlier lease the tenant who had constructed a building with the material supplied by the landlord agrees to take the building as the landlord s building and to pay rent on that footing and surrender it at the expiry of the lease is it open to the tenant to contend that the building is his own?

C. If the defendant is holding the building and premises under the lease of 1962 and no building has been constructed thereafter can be claim from under Section 106 of the Kerala Land Reforms Act on the footing that he, as a lessee under a commercial lease, has constructed buildings."

7. Section 100 of the Code of Civil Procedure states that an appeal shall lie to the High Court under the said Section only "if the High Court is satisfied that the case involves a substantial question of law" sub-section (4) empowers the High Court to formulate the substantial question of law involved in the c