Judgment

K. RAMASWAMY, J. :- Leave granted.

2. This appeal by special leave arises from the order of the High Court of Kerala dated August 18, 1988 made in C.R.P. No. 2220 of 1987B. The respondent-landlords filed R.C.P. No. 19 of 1974 under S. 11 of Kerala Buildings (Lease and Rent Control) Act, 1965, for eviction of the appellant-tenant. Under the proviso thereto if the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Controller shall decide whether the denial or claim is bona fide. Recording of such a finding positively in favour of the tenant will require the landlord to sue for eviction of the tenant in a Civil Court. The Rent Controller had accepted the plea of the tenant to be bona fide and relegated the respondents to seek eviction by a civil suit. Before its initiation, the appellant filed DA No. 11730 of 1986 before the Land Tribunal under the Kerala Land Reforms Act claiming that the lease was of the agricultural land and as a cultivating tenant, he is entitled to get assignment of the title of the land under S. 72B of the Land Reforms Act which postulates that the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under S. 72, shall be entitled to assignment of such right, title and interest. The "cultivating tenant" is defined to mean a tenant who is in actual possession of, and is entitled to cultivate the land comprised in his holding.

(Emphasis supplied)

3. The Land Tribunal, by an order dated November 29, 1976, found that the lease was of commercial building and it is not an agricultural land. Therefore, the appellant was not entitled to the assignment of the right, title and interest in the holding and accordingly dismissed the petition.

4. The respondent filed OS No. 67 of 1987 for eviction of the appellant. In the suit the appellant relying on S. 106 of the Land Reforms Act, claimed fixity of tenancy pleading that the land was demised for a commercial or industrial purpose and the appellant had constructed a building thereon for commercial purpose before May 20, 1967 and that, therefore, the appellant by operation of S. 106 of the Land Reforms Act cannot be ejected. He also claimed that the Civil Court shall have to refer the matter to the Land Reforms Tribunal under S. 125(3) of the Land Reforms Act and the Civil Court is devoid of jurisdiction to decide the question.

5. Section 106 of the Kerala Land Reforms Act provides thus :

"106. Special provisions relating to leases for commercial or industrial purposes :

(1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and rent shall be liable to be varied every twelve years.

Explanation:- For the purposes of this section,-

(a) lessee included a legal representative or an assignee of the lessee; and

(b) building means a permanent or a temporary building and includes a shed."

6. Sub-section (3) of S. 125 creates a bar of jurisdiction of the Civil Court. It reads :

"Section 125(3). If in any suit or other proceeding any question regarding rights of a tenant or of a Kudikidappukaran (including a question as to whether a person is a tenant or a Kudikidappukaran) arises, the Civil Court shall stay the suit or other proceedings and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situated together with the relevant records for the decision of that question only."

7. The trial Court held by its order dated August 3, 1987 that the appellant is entitled to the reference under Sec. 125(3). Feeling aggrieved, the respondents filed revision in the High