1. S.A. 148/1987 is filed by the first defendant in O.S. 276/1979 on the file of the Munsiffs Court, Kayamkulam. S.A. 282/1987 is filed by the plaintiff in the said suit challenging the refusal of relief to him on certain aspects.

2. The plaint schedule property along with other extents originally belonged to the family of the second defendant An extent of 5 cents was leased out to enable the lessee to put up a building for his commercial purpose. It is seen from the evidence in the case that the lease was originally in favour of PW2 and" subsequently the said rights came to vest in the first defendant. In a subsequent partition the plaint schedule property was allotted to the share of the second defendant and the present plaintiff claims on the basis of an assignment from the second defendant under Ext. Al dated 7-7-1975. The predecessor of the second defendant had earlier filed a suit, O.S. 14 of 1961 on the file of the Munsiffs Court of Krishnapuram, for recovery of possession of the property including the present plaint schedule with arrears of rent. The said suit was resisted by the present first defendant who at the trial claimed that he is entitled to the protection of S.78 of Kerala Act 4 of 1961 which corresponds to S.106 of Act of 1964. By Ext. A5 judgment dated 27-6-1962 the Munsiffs Court of Krishnapuram upheld the plea of the present first defendant that he is entitled to the protection of S.78 of Act 4 of 1961 and hence he could not be evicted. A decree for arrears of rent alone was granted. Though there was an appeal from the said decree at the instance of the landowner, the same was dismissed by Ext.B4 decree dated 2-11-1964. Thus the position was that it was held in Ext.A5 judgment that the first defendant herein was entitled to the protection of S.106 of the Kerala Land Reforms Act.

3. The present plaintiff went into possession of the building under the first defendant as a building tenant. The first defendant filed an application for his eviction as BRCO.P. 43 of 1975 on the file of the Rent Control Court, Kayamkulam under S.11(3) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act. The said application for eviction was allowed after overruling the contentions of the present plaintiff and an order for eviction was passed. The said order is Ext. B6 dated 3-2-1976. An appeal filed by the present plaintiff was also dismissed by the order.Ext.B7 and a further revision RCRP 6 of 1977 was also dismissed.

4. It was while the proceedings under the Rent Control Act was pending against him that the present plaintiff took an assignment of the rights of the second defendant over the land under Ext.A1 on 7-7-1975.

5. The present suit is filed by the plaintiff for a declaration of his title over the plaint schedule item No.1 and for an injunction restraining the first defendant from entering into the said property. There is also a prayer for a direction to remove the buildings constructed by the first defendant in the property. There is a further relief sought of an injunction restraining the first defendant from executing the order of the Rent Control Court in BRC OP 43 of 1975 and from reconstructing the building in the property. It is not in dispute that the plaint schedule property herein is part of the 5 cents which was originally leased out to PW2 for the purpose of constructing buildings for his business. The plaintiff based his right to relief on the averment that he is the owner of the property and what was granted to the first defendant by his predecessor was only a licence, that it conferred no right on the first defendant to maintain his building in the property or to reconstruct the building in the property, that the order of eviction passed against him by the Rent Control Court cannot be enforced in view of the fact that he has now become the owner of the land over which the building stands and that therefore he is entitled to a declaration of his title and possession over the plaint schedule property with all the other reliefs claimed in the suit. His claim for possession was based on the fact that subsequent to Ext. A1 he had entered possession of the land and had started taking usufructus therefrom. This was countered by the first defendant by contending inter alia that it had already been held in Ext.A5 judgment that he is a lessee entitled to the protection of S.106 of the Kerala Land Reforms Act and that the plaintiff is therefore not entitled to any relief against him though he might hold the ultimate reversion over the plaint schedule property. It was contended that the rights of the plaintiff is confined to recovering rent in terms of S.106 of the Act. It was the further plea of the first defendant that as a tenant protected by S.106 of the Kerala Land Reforms Act he is en titled to construct additional buildings or to reconstruct the existing buildings and that the land owner has no right to prevent such an exercise by him. It was also contended that in view of the fact that he has obtained an order for eviction against the present plaintiff under the provisions of the Rent Control Act especially under S.11(4)(iv) of that Act, he is entitled to reconstruct the building and the same cannot be prevented by way of an injunction in favour of the present plaintiff.

6. The trial court held that the plaintiff has acquired title under Ext. Al in respect of the plaint schedule property. It held that the first defendant was in possession of the plaint schedule property as a lessee. It held that the earlier decree in Ext.A5 operated as res judicata and therefore the first defendant was entitled to the protection of S.106 of the Kerala Land Reforms Act. But it took the view that the said protection tends only to preservation of the existing buildings, the buildings put up by the lessee prior to the crucial date and existing on the crucial date, and it does not enable the lessee to reconstruct the said building. In that view though the trial court negatived the relief of injunction regarding entry claimed by the plaintiff, it granted an injunction in favour of the plaintiff restraining the first defendant permanently from putting up any new shop building in the plaint schedule property in addition to declaring the title of the plaintiff over the plaint schedule property under the assignment Ext. A1. Aggrieved, the first defendant took up the matter in appeal before the District Court, Mavelikkara as A.S:10 of 1981. The plaintiff did not file an appeal against that part of the decree of the trial court which went against him. But a belated Memorandum of Cross Objections was filed on behalf of the plaintiff before the Lower Appellate Court. But it is seen from the endorsement in the Memorandum of Cross objections in the Lower Appellate Court that the said Memorandum was not pressed. An order to that effect has been passed by the Lower Appellate Court on 29-8-1986. The result was that there was no appeal or cross appeal by the plaintiff against that part of the decree of the trial court which went against him. S.A.282 of 1987 is filed by the plaintiff before this Court on the basis that there was a valid Memorandum of Cross Objections before the Lower Appellate Court. The counsel for the plaintiff - appellant in S.A.282 of 1987 very fairly submitted before this court that at the time he filed the Second Appeal he was not aware of the fact that the Memorandum of Cross Objections before the Lower Appellate Court was dismissed as not pressed. Whatever that be that part of the decree of the trial court which found against the claim of possession by the plaintiff and negatived the other reliefs claimed by him, has become final and it is not open to the plaintiff to agitate those questions in his Second Appeal, S.A.282 of 1987 he having not filed any appeal before the Lower Appellate Court for relief in that regard. The Lower Appellate Court also held that the first defendant was a lessee entitled to the protection of S.106 of The Kerala Land Reforms Act in view of the decision in O.S.No.14 of 1961. But relying on a decision reported in Karunakaran Nair v. Ramakrishnan Nair (1966 KLT 351), the Lower Appellate Court confirmed the decree for injunction in favour of the plaintiff restraining the first defendant from reconstructing the building in the plaint schedule property. The Lower Appellate Court did not deal with the contentions in the Memorandum of Cross Objections obviously in view of the fact that it was not pressed. The complaint in S. A.No.282 of 1987 filed by the plaintiff is that the Lower Appellate Court has erred in not deciding the Memorandum of Cross Objections on the merits.

7. Coming to S.A 148 of 1987: it is contended by the learned counsel for the appellant therein that having found that Ext.A5 judgment operates as res judicata and that he is entitled to the protection of S.106 of the Kerala Land Reforms Act, the courts below have acted illegally in granting a decree for injunction restraining the first defendant from reconstructing the building or putting up any other structures in the property. According to him once it is found that he is entitled to the protection of S.106 of the Act, he is entitled to make use of his holding in his best interests and the landlord whose rights are circumscribed by what is contained in S.106 of the Act has no right to question his right to do so. It is also contended by him that in view of the fact that the reconstruction in the present case is attempted by him on the basis of an order for eviction passed by the Rent Control Court in his favour, it is not legal just or proper to injunct the reconstruction so permitted by an order of an exclusive Tribunal. The counsel for the plaintiff controverted these submissions by contending that the first defendant is not a lessee en titled to the benefit of S.106 of the Kerala Land Reforms Act, that the judgment Ext.A5 cannot operate as res judicata, that on the facts it could be seen that S.106 of the Act is not available to protect the first defendant who is only an assignee of the leasehold, that the plaintiff having become the owner of the land is entitled to prevent the variation in the user thereof without his permission and that the courts below were right in granting a decree restraining the first defendant from reconstructing the building. It was his further submission that the protection under S.106 of the Act is attached only to the building that existed on the relevant date namely 18-12-1957 as it originally stood and/or on 20-5-1967 as it was subsequently amended and that the tenant gets no right to pull down the structure in existence on that date or to put up additional structures in the property. He thus justifies the decree for injunction granted in his favour by the courts below.

8. The first aspect to be tackled is as to whether Ext. A5 would operate as res judicata and preclude the plaintiff from contending that the first defendant is not entitled to the protection of S.106 of the Kerala Land Reform Act. The plaintiffs predecessor was the plaintiff in Ext.A5 suit. Incidentally the plaintiff himself was the second defendant in that suit in his capacity as a tenant of the building. That suit was for eviction of the first defendant from the land in dispute. The plaintiff therein, the predecessor of the present plaintiff asserted that he was entitled to a decree for eviction of the plaint schedule property. The first defendant herein who was the first defendant therein as well, resisted the claim for eviction inter alia pointing out that he was entitled to the protection of S.78 of Act 4 of 1961. The parties thus joined issue on the question as to whether the first defendant was entitled to the protection of S.78 of Act 4 of 1961 corresponding to S.106of Act 1 of 1964 though the issue that was framed was omnibus. It read: "Is the defendant liable to be evicted" On a consideration of the facts and the provisions of the section the Munsiffs Court, Krishnapuram held that the first defendant is entitled to the protection of S.78 of Act 4 of 1961. The claim for a decree for eviction was disallowed. This decree passed after trial was affirmed in appeal as can be seen from Ext.B4 decree dated 2-11-1964 after the coming into force of Act 1 of 1964. It is the Submission of the counsel for the plaintiff that the said decision was wrong on facts and therefore could not operate as res judicata. It is not possible in the state of the record to conclusively decide the question as to whether the decision that the first defendant is entitled to the protection of S.106 of the Kerala Land Reforms Act is correct or not. But it is not possible to accede to the argument of the learned counsel for the plaintiff that Ext. A5 judgment does not operate as res judicata. The plaintiff herein claims under Ext.Al. Ext.A.1 also conveys to the plaintiff the benefit of the decree in D.S.14 of 1961. The predecessor in-interest of the assignor of the plaintiff under Ext.Al was the plaintiff in O.S.14 of 1961. The question of evictability of the first defendant was directly and substantially in issue in that litigation. After trial and on merits, it was held by a competent civil court which had jurisdiction that the first defendant was entitled to the protection of S.106 of the Kerala Land Reforms Act. The decision Ext. A5 thus satisfies all the requirements of S.11 of the Code of Civil Procedure and therefore I have no hesitation in holding that Ext. A5 decision as affirmed by Ext.B4 decree would operate as res judicata on the question of the protection of S.106 of the Kerala Land Reforms Act to the first defendant. If that be so this court has to proceed on the basis that the first defendant is entitled to the protection of S.106 of the Kerala Land Reforms Act.

9. S.106 of the Kerala Land Reforms Act confers on a lessee referred to therein a protection of non-evictability. The obligation of the lessee to pay the contract rent is preserved and a right is conferred on the landlord to seek a revision of the rent once in twelve years. The explanation to the Section makes it clear that the benefit is available to a legal representative as well as to an assignee. The position that emerges thus is that once a lessee of land satisfies the requirements of S.106 of the Act he cannot be evicted by the landlord. There is nothing in the Section or in the Act which provides for the loss of protection of the lessee in any contingency. It is therefore clear that once a lessee is found to be entitled to the protection of S.106 of the Kerala Land Reforms Act he does not lose that protection by anything that may happen thereafter. In the absence of a provision bringing to an end the protection conferred by the Section it is not possible to accept the plea that the right of the lessee protected by S.106 of the Act is only a limited right or a precarious right. A lessee entitled to the protection of S.106 of the Act is hence entitled to enjoy his leasehold to his advantage. In this connection reference may be made to S.75 of the Kerala Land Reforms Act. S.75 provides for loss of right in a kudikidappukaran in certain contingencies mentioned in that Section. There is no such provision regarding the loss of protection afforded by S.106 of the Kerala Land Reforms Act in any contingency whatever. In cases covered by S.13 of the Act, of course S.50(A) of the Act statutorily recognises the right of the tenant to do anything in the leasehold property. No doubt there is no such corresponding provision enabling the lessee protected by S.106 of the Kerala Land Reforms Act. But the absence of such a provision . cannot, in my view, in any way affect the right of the lessee from dealing with the leasehold at his discretion. The counsel for the plaintiff submitted that the absence of a provision " like S.50(A) of the Act enables him to contend that a lessee protected by S.106 of the Act does not have a corresponding-right, as S.106 of the Act is outside Chapter II of the Act. Such a lease is also exempted from the protection of S.50(A) by S.3(l)(iii) of the Act. The question then will be what is the content of the protection given to a lessee by S.106 of the Act. By its nature S.106 of the Act seeks to protect industrial or commercial activities by enabling the lessee engaged in such activities to continue without threat of eviction (See Madhavan Vazlwnnavar v. Abdulla, 1966 KLT 515). If the purpose of the section be this namely not to disturb lessees who are engaged in industrial of commercial activities then it should be impermissible to read into the section a restriction on the right of the lessee to put up a new construction or to reconstruct the existing structure to suit his industrial or commercial needs in the changing circumstances. It will also not be permissible to read a restriction into the content of the right conferred by S.106 of the Act in the absence of clear words to that effect in the statute or any other indication in the statutory scheme warranting such restriction. The intention under S.106 of the Act cannot certainly be to confine a tenant to the old structure put by him either in the year 1957 and or in the year 1967 as the case may be and to peg down the tenant to those dates without giving him the right to progress in accordance with the requirement of the times. I am therefore of the view that a tenant protected by S.106 of the Act is entitled to reconstruct the structure which he had originally put up or to put up additional structures in accordance with his requirements.

10. In the present case what the lessee is attempting to do is to reconstruct the original structure put up So as to put the leasehold to a better use. Counsel for the plaintiff referring to the decision of his Lordship Mr. Justice Madhavan Nair, reported in Karunakaran Nair v. Ramakrishnan Nair (1966 KLT 351) submits that the protection is regarding the building constructed prior to the crucial date by the lessee and that the lessee will lose the protection if and when he brings down that construction. With respect to the counsel, I cannot accept this plea. All that his Lordship Mr. Justice Madhavan Nair laid down in Karunakaran Nairs case (1966 KLT 351) was that a building constructed by a lessee of land must have been in existence at the relevant date so as to confer on him the protection of S.78 of the Kerala Act 4 of 1961 corresponding to S.106 of Act 1 of 1964. Whether the protection once acquired will be lost by demolishing that building or reconstructing it, was not an issue in that case. Applying the ratio of that decision it can be seen in this case that there existed a building constructed by the lessee on the relevant date and that he was found entitled to the protection of S.106 of the Kerala Land Reforms Act. It appears to me that unless there is anything in the statute or in the scheme of the Act compelling the court to restrict the right of a lessee who has been conferred the protection of S.106 of the Kerala Land Reforms Act it may not be proper or appropriate to restrict such a right by confining the protection to the building that existed as on the date referred to in that Section. The section does not lay down any such restriction. It also appears to me that such a restriction on the protection afforded by S.106 of the Kerala Land Reforms Act would lend to defeat the object of the Section itself which is enacted in the interests of industry and commerce. A narrowing down of the right may lend to retard the industrial or commercial progress. I do not find anything in . the Act to compel me to adopt such a narrow construction.

11. The courts below have granted an injunction restraining the first defendant from reconstructing the building that was in existence on the relevant date referred to in S.78 of Act 4 of 1961, in this case. Except referring to the decision reported in 1966 KLT 351, the Lower Appellate Court has not given any reason to justify such a decree. Once it is found that the lessee is entitled to the protection of S.106 of the Act and there is no contingency of loss of such a protection with reference to the scheme of the Act, it is not possible to agree with the Lower Appellate Court that the lessee has no right to reconstruct the building which already existed in the property on the crucial date. It does not also accord with the scheme of the Act or the object of conferring non-evictability on a commercial lessee.

12. The other submission of the learned counsel for the first defendant is also equally weighty, namely, that he is attempting the reconstruction pursuant to a valid order for eviction obtained by him under S.11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act against the present plaintiff. According to him the order for eviction, Ext. B6 is one well within the jurisdiction of the Rent Control Court in fact it is within the exclusive jurisdiction of the Rent Control Court and that the execution of such an order or the carrying out of such an order, cannot be prevented by an injunction by civil court. I find considerable force in this submission as well. But it is not necessary for me to decide that aspect of the case finally here in the view I have taken on the content of the rights of a lessee protected by S.106 of the Kerala Land Reforms Act. Therefore 1 do not pronounce finally on that question here.

13. The result is that S.A.148 of 1987 is to be allowed with costs and the decree restraining the first defendant from reconstructing the building or putting up any new construction in the plaint schedule properly is vacated. The decree in the suit will be confined to a declaration of the plaintiffs title over the land in question. S.A.282 of 1987 is only to be dismissed for the reasons stated in Para.6 of the judgment and in view of my finding that Ext.A5 decree operates as res judicata. But in view of the fact that 1 have already awarded costs in S.A.148 of 1987 to the first defendant, I do not think it necessary or proper to award costs, in this appeal.

In the result S.A. 282 of 1987 stands dismissed without any order as to costs and S.A.148 of 1987 stands allowed with costs as stated above.