The main legal point established in the judgment is that a party cannot raise alternative pleas of tenancy under different sections of the statute in successive proceedings, and the doctrine of election applies to bar a party from claiming a different relief after losing a related application.

1. The plaintiffs are the revision petitioners.

2. The suit is for recovery of the plaint schedule property with arrears of rent. The pleadings disclose that the plaint schedule property with a house, cinema hall and the land appurtenant thereto was let out to the respondent on 15-10-1967 on a rental of Rs. 300/- per month. The property sought to be recovered is more particularly described in 'B' schedule. B schedule property forms part of 'A' schedule property. The first defendant in his written statement has inter alia, contended-which alone is relevant for the purpose of considering the dispute in the revision petition-that be is entitled to the benefit of S.106 KLR. Act. In support of this plea he has stated in the written statement thus:

"He was holding a portion of the plaint schedule property under a lease executed in 1948. The remaining portion is held under different transaction, a lease deed of the year 1962. A cinema shed was constructed in that portion of the property which is the subject matter of the lease of 1962, prior to the relevant date i.e. 28th May, 1967".

3. The question whether the lease in question partakes of the character of a lease within the meaning of S.106 KLR. Act, has been referred to the Land Tribunal by the court below by the order under challenge.

4. The learned counsel for the petitioners argues that the order of the Land Tribunal dismissing O.A. 11730/76, filed by the first respondent-first defendant under S.72B KLR. Act disentitles him to press into service S.106 and content for the position that the suit for eviction is not maintainable, since it operates as res judicata and if that be so, the order of reference is bad in law.

5. 72B confers right on the cultivating tenant to purchase the right, title and interest of the landlord in respect of the holding. That O.A. the first defendant had filed before the Land Tribunal was one under S.72B, is beyond dispute. That means, the case, the first defendant had put forward in the said proceeding, was that be was a cultivating tenant entitled to purchase the right, title and interest of the landlord in respect of the holding in dispute. The petition however, was dismissed.

6. It is the common case of the parties that in the order of the Land Tribunal, there is a finding which reads:

"The lease in this case was specifically granted for a commercial purpose, and therefore the provision regarding tenancies are not applicable in this case. This is therefore a case for exemption under S.3 (iii) of the KLR. Act. Hence the application is dismissed".

7. The learned counsel for the respondents relying on this observation argues that the plea of the bar of res judicata cannot be raised in this case because the only question, the tribunal decided there was that, inasmuch as the lease was for a commercial purpose, the person holding the land under such a lease is not entitled to the benefits of KLR Act. That means, according to the learned counsel, the question as to whether the defendants are entitled to the benefit of S.106 has not been decided by the Land Tribunal. Whatever that be, the Land Tribunal in a proceeding under S.72B cannot go into that question as to whether the defendants are entitled to the benefit of S.106. It is not as if there is no force in this argument.

8. But the question here is, whether the first defendant can in the present suit raise this question and get the same referred to the Land Tribunal under S.125(3)

9. The learned counsel for the petitioners submits that in view of the Division Beach ruling of this court in Narayanan v. Parukutty Amma (1986 KLT.1340) the first defendant cannot be permitted to press into service the provisions of S.106 and if that be so, the Ist respondent cannot get the question aforementioned referred to the Land Tribunal under S.125(3). He argues that the plea now raised by the first defendant is inconsistent with the claim be had put forward in the O. A. under S.72B, which, as already stated, was di