TMI Blog1994 (3) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... ldings (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 ()A 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion. 5. Section 106 of the Kerala Land Reforms Act provides thus: , 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. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondents for commercial purpose, namely, to run cinema theatre and that, therefore, the appellant is entitled to fixity to tenancy. When that was disputed by the landlords-respondents, the only forum to decide the issue is the Land Tribunal and not the Civil Court and the High Court is not right in its contra conclusion. 9. Sri P.S. Poti, the learned senior counsel for the respondents, on the other hand, raised three fold contentions. First, according to the learned Counsel, the rent control proceedings under Section 11 of the aforesaid Rent Control Act operates as res-judicata since the appellant had the opportunity to plead the right of Section 106, but he failed to do so. In the rent control proceedings, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11 of the Civil Procedure Code, 1908 postulates that any matter which might had ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such suit; and no court shall try any such suit or issue in which the matter directly and substantially in issue in former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. Admittedly, in the former proceedings before the Rent Controller, the claim was ejectment of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remedy of Section 106, it is no longer open to him to contend that he is entitled to the benefit of Section 106 of the Land Reforms Act. 12. In Narayanan v. Kunchi Amma Parukutty Amma (1986) KLT 1340, a Division Bench of the High Court in para 9 therein held that it is true that the plea of tenancy under Section 106 of the Act now raised related to the different kind of tenancy; but on the principle contained in Explanation IV to Section 11 of the Civil Procedure Code we are inclined to hold that this was a matter which might and ought to have been raised at the time of earlier reference and therefore, the matter does not arise for trial by the Civil Court or the Tribunal. We accept that the statement of law has been corr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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