K. RAMAKRISHNAN, J.

The defendant in O.S.No.864 of 2007 on the file of the Sub Court, Ernakulam is the appellant herein.

2. The suit was filed for recovery of possession for the plaint schedule property after removing the constructions therein by the defendant from the possession of the defendant on the basis of the plaintiff's title and also on the ground of termination of lease agreement and also for recovery of damages for use and occupation with following allegations. The plaintiff is the absolute owner of the plaint schedule property having an area of 10.030 cents of property comprised in survey No.912/2011 and 913/4 of Elamkulam village which he obtained as per partition deed No.2656/72 of S.R.O, Ernakulam. This property was leased out to the defendant for the purpose of erecting petrol pump and service station as per registered lease date No.3098/1981 of S.R.O. Ernakulam executed on 20.7.1981 for a period of 20 years with effect from 1.4.1981. It is alleged in the plaint that in the lease deed so executed, the defendant fraudulently incorporated a clause whereby the lease will automatically and without any further act of any of the parties thereto renew for a period of five years from the expiration of the period of twenty years. According to the plaintiff such a term was incorporated without his knowledge, as he did not know english. That apart, in the certified copy of the lease deed sent to the plaintiff by the defendant that portion, was struck off to mislead him.

3. After the expiry of twenty years, the plaintiff filed O.S.No.396/2001 before the Sub Court, Ernakulam for recovery of possession, but that suit was dismissed on the ground that it is prematured one and also the defendant is entitled to get protection under section 106 of the Kerala Land Reforms Act. The plaintiff filed A.S.No.396/2005 before the District Court, Ernakulam and by judgment delivered on 29.6.2007, the District Court set aside the finding of the trial court that the defendant is entitled to get protection under section 106 of the Kerala Land Reforms Act and held that they are not entitled to get that benefit, but dismissed the appeal on the ground that it was premature as the lease period was not over confirming the finding of the trial court on that aspect. Now the period of lease expired on 31.3.2006 by efflux of time.

4. The plaintiff sent a notice dated 22.8.07 to the defendant calling upon them to pay arrears of rent at the rate of Rs.1,900/- till 31.3.2006 and thereafter at the rate of Rs.15,000/- per mensum being the damage for un-authorised use and occupation of the premises and to remove the structures and to surrender vacant possession of the property to him. After the expiry of the lease, the defendant is not entitled to keep possession of the property. The property is situated in a commercially important area in Ernakulam and it will fetch a rent of Rs.15,000/- per month. So plaintiff is entitled to get rent at the rate of Rs.1,900/- per month from 1.4.2001 to 31.3.2006 and thereafter from 1.4.2006 till 30.09.2007 at the rate of Rs.15,000/- per month as damages for unauthorised use occupation. Since the defendant did not vacate the premises, the plaintiff filed the above suit claiming recovery of possession and for recovery of Rs.36,100/- towards arrears of rent for the period from 1.4.2001 to 31.3.2006, Rs.2,70,000/- towards damages for use and occupation from 1.4.2006 to 30.9.2007 and damages for use and occupation at the rate of Rs.15,000/- per month from the date of suit till surrender possession of the building with12% interest.

5. The defendant entered appearance and filed written statement contending as follows:

The suit is not maintainable. The allegation that plaintiff is the owner of the plaint schedule property is admitted. But the averment that the property was leased out to the defendant in 1981 for a period of twenty years is not correct. The defendant is in possession of the property on the basis of the lease a