The burden of proof lies on the tenant to establish permission for construction against the terms of the lease deed, and the deeming provision in S.106 of the Transfer of Property Act does not apply when there is an express agreement providing for a specific lease period and rent.

The defendant in a suit for eviction and other incidental reliefs is the appellant in the second appeal. Both the courts have decreed the suit as prayed for.

2. According to the plaintiff, the plaint schedule property was let out by the plaintiff to the defendant as per Ext.A1 rent deed dated 5-12-1988. The period of lease was six months and rent was Rs.100/ per month. The purpose of the lease was for additional convenience of the Engineering Works business which was conducted by the defendant in the premises adjacent to the plaint schedule property. The rent was subsequently enhanced to Rs.125/-. The defendant unauthorisedly put up a shed by connecting the two walls on either side of the plaint schedule property. It was put up in the absence of the plaintiff while he was away for treatment at Palakkad. The plaintiff sent a notice on 17-11-1995 terminating the tenancy and filed the suit since no surrender of the property was made.

3. In the written statement, it was contended that the shed was put up with the consent of the plaintiff and additional rent of Rs.25/- was given for that reason. Even after he came to know of the construction of the shed, the plaintiff received rent and therefore there is acquiescence. No eviction is possible without recourse to the Rent Control Court. There was no valid notice under S.106 of the Transfer of Property Act. After framing necessary issues, the trial court found that the suit was maintainable and there was no necessity to approach the Rent Control Court as there was no entrustment of a building to the tenant and the shed and constructed, according to the plaintiff, unauthorisedly. The trial court also found that S.74 of the Kerala Land Reforms Act will not stand in the way of the plaintiff seeking recovery of possession as the tenancy was created for commercial purpose and was exempted under S.3 (iii) of the Kerala Land Reforms Act. It was further found that the notice sent was valid and proper under S.106 of the Transfer of Property Act. The plea of estoppel and acquiescence were found against.

4. The appellate court confirmed the findings of the trial court.

5. The first contention put forward by the learned counsel for the appellant is that S.74 of the Kerala Land Reforms Act prohibits creation of tenancy and therefore the suit now filed on the basis of Ext.A1 lease is not maintainable. This contention has only to be stated to be rejected since Ext.A1 specifically says that the land is leased for the additional convenience of the Engineering Works conducted by the defendant. Section 3 (iii) of the Land Reforms Act specifically exempts leases of land or of buildings or of both specifically granted for industrial or commercial purposes. The lease being for commercial purpose does not come within the provisions of S.74 of the Kerala Land Reforms Act. More over, having obtained possession under Ext.A1 lease deed, it is not open to the appellant to contend that the lease is invalid and that he can continue in possession as owner of the property. The benefit of permanency is given only to agricultural leases created prior to 1-4-1964 and if the contention of the appellant is accepted, it will be extending that benefit to persons who are not entitled to it.

6. The learned counsel for the appellant then submitted that the petitioner should have approached the Rent Control Court instead of filing a regular suit as there is a shed in the property. This contention also cannot be sustained since what was leased was land only and the case of the plaintiff is that the shed was unauthorisedly constructed. The provisions of the Rent Control Act will apply only if the appellant is a tenant as defined under the Kerala Buildings (Lease and Rent Control) Act. The definition of the word “tenant” in S.2 (6) of that Act shows that tenant means any person by whom or on whose account rent is payable for a building and it includes the heir or heirs of a deceased tenant. Ext.A1 specifically prohibits ma