The execution court cannot decide matters relating to the recovery of the building and the benefits of Act 2 of 1965, as these are to be considered and decided on the trial side. The plaintiff must allege and establish grounds under Act 2 of 1965 for the recovery of the building.

1. Second appeal is by the second defendant. Deceased first defendant was her husband and fourth defendant their daughter. Third defendant is the husband of fourth defendant and defendants 5 and 6 are their children. Defendants 2 to 6 were impleaded only as persons residing in the building in the suit property a1ongwith the first defendant.

2. Suit property is 26 cents and a building, which originally belonged to first defendant on lease. In 1951, he assigned it to one Vareed under Ext.AS, but continued to reside in the building on oral rent arrangement and then on the basis of Ext. A10 rent deed executed in 1954. In 1960, plaintiff got Ext.A1 assignment of the rights of Vareed. First defendant, thereafter, attorned to the plaintiff. When the plaintiff filed an R.C.O.P. for eviction, first defendant denied his title and the rent arrangement itself. Denial of title was found bona fide and hence by Ext. B9 order, plaintiff was directed to seek remedy before the civil court. That is how this suit was filed for recovery of the land and building on the strength of title.

3. The stand taken by the defendants was that first defendant never parted with his rights in favour of Vareed and he continued to be the owner in possession of the land and building. Rent arrangement was also denied. Ext.A5 was contended to be the result of fraud and what was intended to be executed was a simple mortgage to secure a loan which was thereafter discharged. In short, the contention was that plaintiff has no right to get any relief.

4. On the evidence, both the courts below found that Exts.A5 and A1 are valid documents which conferred title and possession to Vareed and then to the plaintiff. Rent arrangement of the building was also found true. A decree was given for recovery of the land with mesne profits. The claim for eviction of the building was not considered. Trial court said:

"Whether the first defendant can be evicted from the building or whether he is entitled to protection of Act 2 of 1965 are matters to be considered by the execution court".

Learned District Judge refused to interfere in appeal and dismissed the same confirming the decree saying that the trial court was right in doing so. Hence this second appeal.

5. Concurrent findings regarding genuineness of Exts.AS, A1 and A10 as well as the decree for recovery of possession of the land with mesne profits, past and future, do not require interference and that part of the decree was rightly not seriously challenged before me. The only request was that the appellant may be permitted to put forward the plea of kudikidappu right when the question of recovery of the building and the benefits of Act 2 of 1965 are considered in execution as directed in the decrees of the courts below. Such a plea was not raised before the trial court or the appellate court. It was raised, for the first time, only in the memorandum of second appeal. Respondent/ plaintiff opposed the request saying that it is barred by res judicata and estoppel. What is pleaded is constructive res judicata on the ground that such a contention, which might and ought to have been pleaded before the courts below, was not pleaded. Estoppel is on the ground that such a plea was raised before the Rent Control Court and withdrawn atleast for the time being as seen from Ext.B9 order. In the way in which I am going to dispose of the second appeal, both these contentions cannot arise. If the plea is now allowed to be raised, there is no question of res judicata operating. The R.C.O.P. did not decide anything except the bona fides of the denial. When the denial of title was found bona fide and the petitioner referred to the civil court, if the respondent did not want the kudikidappu to be considered at that time, it cannot give rise to a plea of estoppel.

6. But a very inconvenient position has arisen on account of the approach made by the trial court and the appellate court. Both of them unwittingly directed and authorised the executi