A lessee of a commercial site is not entitled to immunity from eviction under S.106 of the Kerala Land Reforms Act if the lessee surrenders the site to the landlord or transfers the building constructed for commercial purposes.

1. The plaintiff-appellant challenges the correctness of the decision of the courts below dismissing his suit on the finding that the first defendant is entitled to the benefits of S.106 of the Kerala Land Reforms Act as amended by Act 35 of 1969. The court below has followed the decision of a learned judge of this court reported in Idreesu Kunju Shavkath Ali v. Nafeesa Beevi (1973 KLT 808). The correctness of that decision was doubted by one of us and that is why this case has come up before a Division Bench.

2. The suit is for eviction of the defendants from a shed and its appurtenant land, 2 cents in extent. There is no dispute that the land belonged to the first plaintiff. He had as per Ext.A1 dated 24-3-1955 demised an extent of 11/2 cents to the first defendant on Tharappattom of Rs.4/- per month specifically for the purpose of erecting a shed for conducting a trade. The first defendant constructed a shed in the land demised under Ext.A1 and started a trade therein. It is the common case of both parties that he was allowed to make additions to the shed and a total area of 2 cents of land was in his occupation in the year 1956. The Tharappattom was enhanced from Rs.4/- to Rs.6/- per month. There were two documents Exts.A9 and B1 executed on 20-1-1967. A reading of both these documents will leave no room for doubt that the documents relate to the same transaction. Ext.A9 executed by the 1st plaintiff recites that the shed constructed by the first defendant is assigned to the first plaintiff for a consideration of Rs.78/- adjusted towards arrears of rent, and the rights of the first defendant under Ext.A1 are extinguished. Ext.B1 of the same date is a registered rent chit relating to the shed executed by the first defendant in favour of the first plaintiff. This document is consistent with the recitals in Ext.A9 that the rights of the first defendant under Ext.A1 had been terminated and the shed constructed by him sold to the first plaintiff. Ext.B1 affirms the first plaintiff's title and possession of the land and his ownership of the shed. The shed is let out to the first defendant on a monthly rent of Rs.12/- for a period of one year. The first plaintiff has filed the suit for recovery of possession of the shed and its site on the basis of Exts.A9 and B1.

3. The first defendant raised a contention that he is a lessee of the land on which he had constructed a shed for commercial purposes and is therefore entitled to immunity from eviction by virtue of the provisions contained in S.106 of the Kerala Land Reforms Act. The issue relating to the claim for benefit of S.106 of the Act was referred to the Land Tribunal for its decision under S.125(3) of the Act. The Tribunal returned the finding that the first defendant is entitled to the benefits of S.106 of the Act. Accepting that finding, the trial court dismissed the suit. The decree of the trial court was confirmed in appeal by the lower appellate court following the decision in Idreesu Kunju Shawkath Ali's case (1973 KLT 808). On the facts of Idreesu Kunju Shawkath Ali's case it was found that the appellant in that case continued to be in possession of the land even after the receipt of the value of improvements and hence he is a lessee entitled to the benefits of S.106 of the Act. After referring to the decision of a Full Bench of this court reported in Ouseph Lonan v. Kochunarayana Pisharady (1971 KLT 155) to the effect that even a quondam tenant remaining in possession is entitled to fixity of tenure under S.13 of the Act (Act 1 of 1964), the learned judge at page 813 observed:

"This observation of the Full Bench, I think will be of great significance in a case like this where the appellant entered the premises lawfully and continued to be in possession in spite of having received the value of improvements and executed a "deed of surrender and sale". In spite of the execution of Ext. P2 the appellant cannot be characterised as a trespasser except possibly in a