The main legal point established in the judgment is the interpretation of the lease and the construction of buildings by the defendants in determining their entitlement to protection as tenants under the Kerala Land Reforms Act.

1. The defendants in a suit for recovery of property are the revision petitioners. Issues 2,3 and 6 settled in the suit have been disposed of by the order under challenge. Those issues are:

2. Whether the defendants are tenants as defined under the Kerala Land Reforms Act having fixity of tenure?

3. Whether suit is liable to be stayed under S.125 (3) of Act 1/64 for a decision on the right of defendants as tenants in the plaint schedule property?

6. Whether the defendants are entitled to protection under S.106 of the K. L. R. Act?

2. The petitioners in the written statement have raised a contention that they are tenants entitled to fixity of tenure. They have further contended that the sub lease in their favour "is entitled to protection from eviction as provided for under Act I of 1964 as amended by Act 35 of 1969". The summing up in the written statement in this regard reads:-

"....It is absolutely incorrect to say that the lease in favour of the 1st defendant was mainly of buildings with land appurtenant to it and that the lease was specifically for commercial purposes. As a matter of fact the lease was in respect of the vacant land alone and the 1st defendant had been subsequently putting up buildings in the properties to suit their convenience and for the purpose of promoting and continuing their commercial activities. All the buildings now existing in the properties are constructed only by the 1st defendant company subsequent to the lease of the property in their favour in 1919 and the averments contained in the plaint to the effect that it was the Bombay company who effected improvements in the properties are all false and false to the knowledge of the plaintiff".

3. The tenancy thus put forward by the petitioners is that the lease was only of land meant for commercial or industrial purposes and hence they are entitled to the benefit of S.106. However they have not pleaded as to when they constructed the building. Only if they specifically show that the buildings were constructed prior to 20th May, 1967 they are entitled to the protection of S.106. The documents produced in the suit however, show that the lease is of the building with appurtenant lands; and if that be the position, the petitioners are not entitled to the benefit of S.106. It is relevant in this context to note that the scheme of S.106 is such that a lessee claiming the benefit of this section cannot set up an alternative plea that he is entitled to fixity of tenure defined under S.13; reason being that, unlike in the case of a tenant entitled to fixity of tenure, there is no extinguishment of the relationship of landlord and tenant in the case of a lease coming under S.106. The lessee though he is not liable to be evicted from the land, shall be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every twelve years. That means he will continue to be a lessee liable to pay rent to the landlord. Issue No 2 therefore does not arise for consideration. Regarding the other issues the decision of the court below is beyond challenge.

4. The learned counsel for the petitioners however argues that the court below has no jurisdiction to decide the issue as to whether the petitioners are tenants entitled to fixity of tenure in view of S.125 (1) K. L. R. Act. The jurisdiction of the court stands ousted by this section, he submits. This argument in the light of the decisions of this court reported in K. Krishnan Elayath v. A. Suresh (1986 K.L.J. 371), Sankaran v. Appu (1987(1) K.L.T. SN 50 Case No. 68), Ignatius v. Abraham (1980 K.L.T. SN 46 Case No. 100) and Kesava Bhat v. Subraya Bhat (1979 K.L.T. 766 (FB) ), cannot be taken cognisance of. This court in 1980 K.L.T. SN 46 has observed thus:?

"On his own showing there was only a conditional agreement by the 1st defendant to transfer his tenancy right, if he succeed in establishing such right "under the changing law" May be that the defendant who pleads the right of referenc