Manoharan, J.

Revision Petitioner is the defendant in O.S. No. 17 of 1988; a suit for possession. He claimed that he is entitled to the protection under S.106 of the Kerala Land Reforms Act (Act 1/64) (for short ;the Act') on the ground that the land in question was leased to him for commercial purpose and that he has constructed a building for such purpose before 20-5-1967. Issue No. 2 was framed by the court with respect to the said contention. The revision petitioner thereupon wanted the suit to be stayed and the said question referred to the Land Tribunal for adjudication as per S.125(3) of the Act. But the prayer was rejected as according to the lower court since he has applied under S.72-B of the Act for assignment of the land lord's right, he is not entitled to maintain that he is entitled to the protection under S.106 of the Act. According to the lower court he is barred by the doctrine of election from making such a claim. Reliance was placed on the decision in Kamalakshmi Amma v. Vijayan (1988 (2) KLT 498).

2. When the matter came up for hearing before the Chief Justice, His Lordship doubted the correctness of the decision in Kamalakshi Amma's case (1988 (2) KLT 498) and adjourned the case for consideration by a

Division Bench.

3. In the circumstances, advertence to the allegation in the plaint as to this aspect is necessary. In paragraph 7 of the plaint the plaintiff alleges that, the first defendant filed O.A. 3774/76 for purchase of jenm right, that the Land Tribunal on enquiry found that the lease was for industrial and commercial purpose falling under the exception as per S.3(1)(iii) of the Act, and that the petitioner hence is not entitled to maintain the petition. An appeal and a revision by the revision petitioner from the said order were also dismissed.

4. As has been noticed, according to the respondents, since the petitioner has maintained that he is a cultivating tenant and filed an application under S.72-B of the Act, he is barred by doctrine of election in claiming the protection under S.106 of the Act. The decision in Kamalakshi Amma's case (1988 (2) KLT 498) supports the said contention. There it is held that a person who has filed an application under S.72-B of the Act for assignment and lost is barred from claiming the protection under S.106 of the Act on account of the operation of the doctrine of election.

5. For the proper appreciation of the rival contentions brief advertence to the relevant provisions in the Act is necessary. Chapter II of the Act deals with deemed tenants, fixity of tenure for tenants and kudikidappukars, right of tenant to purchase land-lord's right, right of kudikidappukaran to purchase the kudikidappu etc. S.3 of that Chapter states that the provisions in the said Chapter would not apply to leases and tenancies mentioned therein. S.3(1)(iii) exempts leases of land or buildings or both for the industrial or commercial purpose. Thus a lessee falling under S.106 of the Act since is exempted from the purview of Chapter II, he is not entitled to purchase land-lord's right under S.72-B of the Act. Immunity from eviction is by the reason of S.106 itself, S.106 of the Act reads:

"106. Special provisions relating to leases for commercial or industrial purposes:- (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any order leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land. but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.

Explanation:--For the purposes of this, section,-

(a) 'lessee' includes a legal representative or an assignee of the lessee; and

(b) "building" means a permanent or a temporary building and includes a shed.

(1A) The lessor or the-lessee may apply to such