A party cannot introduce a new defense in appeal without prior pleading. Defenses must be substantiated by evidence to be accepted.

EASWARAN S., J.

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R.S.A. No.373 of 2015 &

Cross Objection No.21 of 2016 ------------------------------------------

Dated this the 19^th day of November, 2025

JUDGMENT

Plaintiff in a suit for mandatory injunction and eviction has come up in this appeal against the judgment in A.S. No.66 of 2011 on the files of the Principal Sub Court, Thalassery, which reversed the judgment and decree in O.S. No.208 of 2006 on the files of the Munsiff Court, Kuthuparamba. The Cross Objection is also directed against the judgment of the Principal Sub Court, Thalassery, as it rejected the claim of the defendants for protection under Section 106 of the Kerala Land Reforms Act , 1963.

2. The brief facts necessary for disposal of the appeal are as follows:

The appellant/plaintiff instituted the suit for a mandatory injunction directing the defendants to demolish the shed and the lime kiln in the plaint B schedule and to remove the materials and to quit the plaint B schedule property. According to the plaintiff, the property belonging to the plaintiff is shown as plaint A schedule and a portion thereof was granted to one late Kunjikannan, the father of defendants 1 and 2 and maternal grandfather of defendants 3 and 4, on an oral permission to construct a temporary shed shown as plaint B schedule. After the death of Kunjikannan, the 1st defendant is occupying the shed and defendants 2 to 4 are not seen in occupation of the shed. Thus, according to the plaintiff, the defendants status is that of the legal heirs of the deceased Kunjikannan, the licensee who was the holder of the license under the plaintiff. On 25.7.2006, the plaintiff had issued a lawyer’s notice requiring the defendants to demolish the temporary shed and the lime kiln therein and to remove the materials and vacate the premises. A reply notice was issued on 2.8.2006 in which the defendants had raised a plea of oral lease in the year 1963 with a liability to pay yearly rent of Rs.2/-, and that the existing building in the property was constructed by him. It is further contended that, according to the defendants, the lease was taken from one ‘Thala’, the mother of the plaintiff and that the plaintiff denies the name of her mother as ‘Thala’. According to the plaintiff, her mother's name is ‘Paru’, and nobody had ever called her by the name ‘Thala’ and therefore, the plea that an oral lease was taken from her mother cannot be sustained. The defendants resisted the suit by contending that the possession of the defendants over the property is by virtue of the oral lease, and late Kunjikannan had obtained a license for running the lime kiln and the license for trade now stands in the name of 1st defendant, Nanu. According to the defendants, they are entitled to the fixity of tenure in the holding under Section 106 of the Kerala Land Reforms Act , 1963. It is further pleaded that since the question of fixity of tenure was raised, the matter should be referred to the Land Tribunal for consideration. On behalf of the plaintiff, Exts.A1 to A18 documents were produced, and on behalf of the defendants Exts.B1 to B23 documents were produced. Exts.C1 to C5 are the reports, sketch and plan submitted by the advocate commissioner. PW1 was examined on behalf of the plaintiff, and DW1 to DW3 were examined on behalf of the defendants. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the plea raised by the defendants for protection under of , 1963 cannot be sustained. The alternative plea raised on behalf of the defendants that they are entitled to the prote