The main legal point established in the judgment is that the civil court had jurisdiction to grant a decree on the plaintiff's title but the actual recovery should be under the provisions of the Rent Control Act.

P. K. Balasubramanyan, J.

1. The defendant in a suit for recovery of a building with arrears of rent is the appellant in this Second Appeal. The plaintiff - respondent purchased the plaint schedule building and the shed attached to it under Ext. A1 dt. 12-7- 1971. At the time of the said purchase the defendant was already in occupation of the building and the shed as a tenant. According to the plaintiff on 12-10-1971 the defendant agreed to pay rent at the rate of Rs.24/- per month. Alleging that subsequent to 31-3-1972 the defendant has kept the rent in arrears and that the building requires reconstruction a notice was sent by the plaintiff to the defendant calling upon him to surrender. The defendant sent a reply denying the rental arrangement set up by the plaintiff. In short the defendant denied the tenancy set up by the plaintiff. The plaintiff therefore filed the present suit for declaration of his title and possession over the plaint schedule property and for recovery of the building and the shed situated therein with arrears of rent on the strength of the letting and in the alternative on the strength of title. The defendant resisted the suit contending that the suit is not maintainable, that the plaintiff has no title to the suit property, that there is no relationship of landlord and tenant between the plaintiff and the defendant in respect of the building and the shed, that the defendant has a kudiyiruppu right over the property protected by the Land Reforms Act, that the suit could not be entertained by the civil court since the building in question is one coming within the purview of the Kerala buildings (Lease and Rent Control) Act, hereinafter called the Rent Control Act, that the description of the plaint schedule building is misleading, that the defendant had never paid any rent to the plaintiff, that the plaintiff had not obtained title over the building, that the sale deed relied upon by the plaintiff in so far as it relates to the building and the shed in the occupation of the defendant was void, that the defendant was not liable to be evicted.

2. The Trial Court referred the issue of kudiyiruppu and kudikidappu to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. The land Tribunal returned a finding to the effect that the defendant was not the holder of a kudiyiruppu and hence was not entitled to fixity of tenure under the Kerala Land Reforms Act. It also found that the defendant was not a kudikidappukaran. The Trial Court accepted those findings. On a consideration of the relevant materials, the Trial Court held that the plaintiff has title to the plaint schedule property, that the tenancy set up by the plaintiff has not been proved, that there was no bar of jurisdiction in the civil court to grant a decree to the plaintiff on his title but the actual recovery alone ought to be under the provisions of the Rent Control Act, that the plaintiff was entitled to compensation for use and occupation, that since the shed was not specifically scheduled to the plaint, the plaintiff was not entitled to any relief in respect of that shed and that the plaintiff is entitled to a decree on the following terms : --

"The plaintiff's title over the plaint schedule building M.C. 122 is hereby declared. The plaintiff is allowed to recover plaint schedule building M.C. 122 from the defendant subject to the provisions of the Kerala Buildings (Lease and Rent Control) Act. The plaintiff is allowed to recover Rs. 252/- as damages till date of suit and future damages at the rate of 84/- per year from the defendant".

The plaintiff and the defendant both went up in appeal. The defendant challenging the decree on title granted to the plaintiff and the plaintiff challenging the denial of the decree in respect of the shed. The lower appellate court found that the Land Tribunal was right in holding that the defendant was not entitled V to fixity of tenure or to rights as a kudikidappukaran under the Kerala Land Reform