The judgment underscores the necessity of proper evidence regarding a tenant's status and the implications of procedural rulings such as res judicata under the Kerala Land Reforms Act.

J U D G M E N T

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As per verumapat chit No.974/1955 dated 10.8.1955 executed by the appellant in favour of the predecessor-in-interest of the respondent, suit property was given into the possession of the appellant for constructing shop building and conducting trade therein for a period of 3 years fixing the rent at Rs.24/- per year payable in 12 instalments on the 10th of each calender month. Appellant accordingly constructed shop building and was conducting trade therein. While so, suit property was assigned to the respondent as per assignment deed No.326/1973. In the meantime, S.M.P. No.4396 of 1973 was initiated as if the appellant is a cultivating tenant of the suit property entitled to fixity of tenure and purchase the right of the landlord under the Kerala Land Reforms Act (for short, “the Act”). The Land Tribunal dismissed the application. Appellant unsuccessfully challenged that order in A.A. No.845 of 1977. Appellant refused to vacate the premises as demanded by the respondent. Appellant, in reply to the notice demanding vacant possession contended that he is a commercial lessee entitled to the protection of Sec.106 of the Act. According to the respondent the said plea of the appellant is barred by res judicata and estoppal in view of the decisions in S.M.P. No.4396 of 1973 and A.A. No.845 of 1977. Respondent sued the appellant for eviction with rent arrears. Appellant contended that he is entitled to the protection of Sec.106 of the Act as he is a commercial lessee as pursuant to the lease he has constructed shop building and is conducting trade therein from 1955 onwards. He has established a rice and flour mill in the suit property. Appellant is not aware of the assignment in favour of the respondent. It is also contended that claim for rent arrears is time barred. Learned Munsiff among other things raised the following issues:

“(i) Whether the plaint lease is a commercial lease under the K.L.R. Act?

(ii) Whether the defendant has fixity of tenure in the plaint schedule?”

The issues were referred to the Land Tribunal for finding. The Land Tribunal observed that Ext.A2 evidenced only a licence, there is no evidence to show that the appellant constructed shop building in the suit property before 20.5.1967 and hence is not entitled to the protection of Sec.106 of the Act. Learned Munsiff accepted that finding, answered the other issues in favour of the respondent and ordered eviction with rent arrears. Appellant challenged the judgment and decree before the first appellate Court. The first appellate court concurred with that finding and dismissed the appeal. Hence, this second appeal.

2. The substantial questions of law raised for a decision are:

“(i) Whether the permission granted to construct a building is an essential indication of transfer of possession in favour of the appellant to constitute arrangements as a lease and not a licence?

(ii) Whether the construction of the building in the property will create an interest in the property so as to confer the appellant with the status of a lessee?

(iii) Whether Ext.A2 is a lease or licence, if it is a lese whether the appellant is entitled to fixity under Section 106 of the K.L.R.

Act?”

3. It is contended by the learned counsel for appellant that the Land Tribunal was not justified in finding that Ext.A2 is only a licence since it is admitted by the respondent that it is a lease. It is also contended by the learned counsel that there is evidence to show that appellant has constructed the building in the suit property pursuant to Ext.A2 and has been conducting trade therein even before 20.5.1967 and hence the Land Tribunal ought to have found that the appellant is entitled to the protection of Sec.106 of the Act. The first appellate court was not justified in overlooking the evidence and rejecting the contention of the appellant. Learned counsel for the respondent contended that there is no evidence to show that the appellant constructed shop building