The plaintiff in O.S.No. 17/1988 on the file of the Sub Court, Hosdurg is the appellant. He filed the suit for recovery possession of the plaint schedule property on receipt of the value of improvements. Plaint schedule property is comprised in Survey No. 98/3 of Balla village it originally belonged on jenmom right to one Kannan. The right of Kannan later came to Perunthattil Cheriyakkan. One C.H. Ahamed alias Cherakandath Ahammed filed S.C.No. 82/1965 before the Sub Court Hosdurg against Cheriyakkan for realization of money. In execution of the decree passé in S.C.No. 82 of 1965, the plaint schedule property was brought for sale and was purchased by the decree holder C.H. Ahamed. He took delivery of the property. Thereafter. Ahamed assigned the plaint schedule property to the plaintiff as per a registered sale deed dated 8-7-1991. Thus the plaintiff became the absolute owner of the plaint schedule property. The original owner Kannan granted a lease (Nilavadaka Karar) on 8-8-1986 to one Vasudev Prabhu for putting up a shop building in the plaint schedule property. The period of lease was for 12 years and as per the terms of the lease, the lessee is liable to surrender possession of the property and building to the lessor on receipt of the value of the building. On the strength of the nilavadaka karar, Vasudevan Prabhu put up a shop building in the plaint schedule property. Later one Devaraya Kamath filed S.C. No.106/1939 against Vasudeva Prabhu for realization of money. In execution of the said decree the right of Vasudeva Prabhu over the plaint schedule property was brought for sale and decree holder himself purchased the right of Vasudeva Praphu. The decree holder took delivery of the plaint schedule building also. Thereafter, Devaraya Kamath assigned his right over the plaint schedule property to Kannan as per a registered sale deed dated 25-11-1953. Who in turn assigned the same to the first defendant as per a registered sale deed dated 30-5-1961. Thereafter the first defendant filed O.A.No.3474/1976 before the Land Tribunal Kanhangad alleging that he is a cultivating tenant. The said O.A. was dismissed and it was confirmed in appeal and revision. The first defendant sub let all the rooms in the plaint schedule building to defendants 2 to 4. Defendants 2 to 4 in turn subject one room to the 5th defendant which was later surrendered back to defendants 2 to 4. The first defendant is not in possession of any of the rooms situated in the plaint schedule property. Therefore, the defendants are not entitled to the benefit of Sec.106 of the Kerala Land Reforms Act. Hence the suit is filed for recovery possession of the plaint schedule property.

2.Defendants 1 to 4 filed joint written statement disputing the plaint claim. The devolution of interest in favour of first defendant was also admitted. The dismissal of the application for purchase of jenmom right was also admitted. It is further contended that the first defendant is a lessee entitled to the benefit of Section 106 of the K.L.R. Act, and for adjudication, the matter is referred to the Land Tribunal. The allegation of sub lease was denied. Defendants 1 to 4 are in permissive occupation of the plaint schedule building. The plaintiff is not entitled to recover possession of the plaint schedule property.

3.Both sides adduced oral as well as documentary evidence. The question of tenancy was referred to the Land Tribunal and the Land Tribunal found that the first defendant is a tenant under Section 106 of the K.L.R. Act. The court below ultimately dismissed the suit. Against the said Judgment and decree, the present appeal is filed by the plaintiff.

4.The question to be considered is whether the first defendant is entitled to get the benefit under Section 106 of the K.L.R. Act and whether the claim is barred by res judicata. There is no dispute with regard to the devolution of property. It is admitted by the plaintiff that the first defendant got the assignment of the n