The main legal point established in the judgment is the requirement to refer the question of tenancy to the Land Tribunal and the court's jurisdiction to decide the question of tenancy. The judgment also clarifies the principles of implied surrender, merger of leasehold right and mortgage right, and the intention of the parties in keeping the two rights separate.

1. In a suit for redemption of mortgage the trial court passed a preliminary decree rejecting the tenancy right claimed by the defendant without referring the question to the Land Tribunal. Appellate Court confirmed the decree upholding the finding that defendant is not a tenant. Hence the defendant has come up in second appeal.

2. It is not necessary to advert to the facts in detail since facts are not in serious dispute. Exts. A2 and A3 are the mortgage deeds of 1121. At the time of these two documents the property was outstanding on lease with a stranger. The mortgagees were directed to collect rent from the tenants and get possession from them. Accordingly they got possession. As to how the mortgagees got possession is a fact in dispute even though it is admitted that they got possession. Though they filed a suit it was dismissed If so possession could have been obtained only under some arrangement with the lessee. Equity of redemption devolved on the plaintiff and the right of the mortgagees devolved on the defendant.

3. Defendant claimed tenancy right and fixity of tenure under two counts. The first is under S.4A(1)(b) of the Kerala Land Reforms Act as amended. That claim was found against by both the courts and it was rightly not pressed before me. The second ground is that when the mortgage is redeemed the lease hold right obtained by the mortgagee will revive. Contention of the plaintiff in this respect is that the lease was determined by express or implied surrender under S.111(e) or (f) of the Transfer of Property Act when the mortgagee redeemed the lease. That is the main aspect to be considered in the second appeal.

4. Incidentally there is another question also to be considered. Though the defendant claimed tenancy right in the written statement under two heads and though both these claims were denied in the replication the only issue raised by the trial court in this connection was whether the plaint transaction is a mortgage or has it the nature of a lease as contended by the defendant. The question of tenancy was not referred to the Land Tribunal. Without a reference the trial court decided that issue on the merits as if the claim was only under S.4A of the Land Reforms Act. The claim was negatived. The claim on the basis of the original lease redeemed by the mortgagee was not considered at all. In the appeal memo before the first appellate court the defendant challenged the finding on the question of tenancy and stated that the action of the trial court in deciding the question of tenancy without reference to the Land Tribunal was illegal. But there is nothing to show that either before the trial court or the appellate Court the appellant-defendant made a move for reference to the Land Tribunal. Judgments of the courts below do not show that even at the time of arguments the necessity of reference to the Land Tribunal or the illegality or lack of jurisdiction without such a reference was taken up. I do not mean to say that a defendant who has raised the question of tenancy in his pleadings is bound to remind or request the court that a reference to the Land Tribunal is necessary or that without such a reminder or request the court is not bound to make a reference to the Land Tribunal simply because such a question has arisen from the pleadings. I only stated that apart from the plea in the written statement and appeal memorandum the question was not otherwise mooted and both the trial court and the appellate court therefore skipped consideration of the question of reference.

5. From the judgment of the appellate court it appears that tenancy under both heads was raised. The claim under S.4A was considered by the appellate judge in para 9 of his judgment and rightly found against. The claim based on revival of the earlier tenancy was considered in para 10 and the appellate judge rejected that contention on the finding that the mortgagee bad no intention to keep the leasehold 'interest alive. In my opin