JUDGMENT : These two appeals arise from two suits in which the subject-matter is almost the same, though different reliefs are claimed for by the parties. S. A. No. 246 of 1973 is from O. S. No. 237 of 1970 on the file of the Munsiff's Court, Quilon; the other appeal is from O. S. No. 199 of 1970 of the same Munsiff's Court. These suits were tried together and disposed of by the learned Munsiff by a common judgment. Against those decrees the appellant in these second appeals filed A. S. Nos. 235 and 237 of 1972 (A. S. No. 237 of 1972 against O. S.199 of 1970 and A. S. No. 235 of 1972 against O. S. No. 237 of 1970). The respondent in S. A. No. 246 of 1973 had filed a cross-objection in A. S. No. 235 of 1972. In one of the suits, namely O. S. No. 199 of 1970, the brother and son of the respondent in S. A. No. 246 of 1973 are made parties as defendants 2 and 3, the first defendant in the suit being the respondent herself. In O. S. No. 237 of 1970 filed by the respondent in S. A. No. 246 of 1973, the appellant alone was the defendant. 2. There is not much dispute in regard to the facts leading to the institution of the suits. In the year 1964 the appellant herein had obtained a lease under Ext. P-l from the respondent herein (parties are referred to in this judgment as they are arrayed in S. A. No. 246 of 1973) to construct a shop building on the foundation which was in existence at the time of the lease in the plaint schedule property which admittedly belonged to the respondent. In terms of Ext. P-l, after a period of five years, the appellant was required to surrender the land with the building therein receiving a sum of Rs. 1000/- by way of compensation. The rent stipulated was Rs.30/-per month. 3. It is the admitted case that on 9-12-1969 the appellant executed Ext. P-2 release and sale deed by which, receiving a consideration of Rs. 1000/- in terms of Ext. P-l, he sold the building, and surrendered the property to the respondent. 1000/- by way of compensation. The rent stipulated was Rs.30/-per month. 3. It is the admitted case that on 9-12-1969 the appellant executed Ext. P-2 release and sale deed by which, receiving a consideration of Rs. 1000/- in terms of Ext. P-l, he sold the building, and surrendered the property to the respondent. It may here be noted that there is a dispute as to the quantum of compensation paid to the appellant by the respondent (whether it was Rs. 1000/- only as contended for by the appellant or Rs. 2500/- as contended for by the respondent) and it was the subject-matter of the cross-objection in A. S. No. 235 of 1972, in which the finding is that the consideration paid for the surrender (or sale) was only Rs. 1000/-. 4. The appellant had put forward a case that inspite of Ext. P-2 there was a further lease by which the respondent allowed the appellant to continue in possession of the building as tenant under her on his agreeing to pay rent at an enhanced rate of Rs. 45/- per month and that he had also paid an advance of Rs, 135/- by way of rent for three months. I do not, however, find any reason to disturb this finding entered concurrently by the courts below that the plea of the second lease set up by the appellant had not been substantiated, and was to be rejected. 5. A plea based on a question of law has been raised in this second appeal, and that relates to the protection granted to the tenant under S.106 of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969. S.106, as it now stands, reads as follows: "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 such rent shall be liable to be varied every twelve years. Explanation: For the purposes of this section, (a) 'lessee' includes a legal representative or an assignee of the lessee; and (b) 'building' means a permanent or a temporary building and includes a shed. (1A) The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in sub-s. (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being beard pass such orders on the application as it deems fit. (2) If, between the 18th December, 1957 and the date of commencement of this Act, any decree or order of court has been executed and any person dispossessed by delivery, such person shall, on application before the Land Tribunal, be entitled to restoration of possession: Provided that before restoration, such person shall be liable to pay (i) the compensation paid by the landlord for any improvements in the land and subsisting at the time of restoration; (ii) the compensation for any improvements effected subsequent to the delivery: Provided further that be shall not be entitled to restoration if the property has passed on to the possession of a bonafide transferee for value. (3) Nothing contained in sub-s. (1), sub-s. (IA) and sub-s.(2) shall apply to lands owned or held by the Government of Kerala or a local authority. Explanation: For the purpose of this sub-section, 'local authority' includes the Cochin Port Trust and any University established by an Act of the Kerala State Legislature-" The evidence available in this case shows that the land and the basement thereon originally belonged to the respondent. Under Ext- P-l the appellant was allowed to put up a building for commercial purpose, and to carry on business for a period of five years on payment of rent at the rate of Rs. 30/- per month. The further stipulation was that at the end of the period of five years the appellant was to surrender the building receiving a sum of Rs. 1000/- by way of compensation. On 9-12-1969 Ext. P-2 surrender deed was executed, and that document has been styled as surrender deed and sale deed and the sum of Rs. 1000/- was stated to have been paid by the respondent to the appellant as price. 1000/- by way of compensation. On 9-12-1969 Ext. P-2 surrender deed was executed, and that document has been styled as surrender deed and sale deed and the sum of Rs. 1000/- was stated to have been paid by the respondent to the appellant as price. Nevertheless, the property remained in the possession of the appellant on the date of the commencement of Act 35 of 1969. The appellant's suit was for an injunction to restrain the respondent from evicting him from the premises or causing any obstruction to the business that was carried on by him in the premises. The respondent's suit, on the other hand, was for evicting the appellant on the basis of Ext. P-2 'surrender deed and sale deed'. 6. There was no pleading either in O. S. No. 199 of 1970 or in O. S. No. 237 of 1970 with respect to the applicability of S.106 of the Act. However, in the judgment of the trial court in O. S.199 of 1970 there is an observation in the finding under the issue whether the plaintiff in that suit was entitled to the injunction prayed for, that S.106 has no application to the case. Against the decree and judgment in both the suits the appellant took up the matter in appeal. But there was no challenge of the observation contained in the trial court's judgment in O. S. No. 199 of 1970 that S.106 of Act 1 of 1964 as amended by Act 35 of 1969 has no application to the facts of the case. In the memoranda of second appeals, however, the appellant has taken up this as a specific ground to attack the decrees of the courts below. Additional grounds of appeal also have been submitted by the appellant pleading (alternatively, it would appear) that the provisions of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) would apply to the matter in issue, 7. In view of the fact that the courts below have concurrently found that the second lease (either of 15-11-1969 or of 9-12-1969) set up by the appellant has not been proved, the question of applying the provisions of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) does not arise inasmuch as the original lease under Ext. P-l was not that of a building. P-l was not that of a building. The only question that survives for consideration is whether the provisions of S.106 of Act 1 of 1964 as amended by Act 35 of 1969 are attracted to the case. 8. Sri T. K. Kurien, the learned counsel for the respondent (the contesting respondent being only the respondent in S. A. No. 246 of 1973), submits that inasmuch as this question has not been raised in the courts below, and particularly in spite of the fact that there was an observation (which be calls to be a finding) in O. S. No. 199 of 1970 that the plaintiff in that suit was not entitled to protection under S.106 of Act 1 of 1964, the appellant had not taken up that as a ground to challenge the validity of the decree of the trial court, this question could not be urged at this stage. The contention of Sri P. Krishnamoorthy, the learned counsel for the appellant, on the other hand, is that it is a question having bearing on the jurisdiction, and being a question of law it could be raised even at this stage. It is also further contended that his submission on the question of law is based on evidence that has already been let in, and which could be resolved by this Court without any need for remand for further evidence. In support of his contention the learned counsel places reliance on the decisions of the Supreme Court in Seth Loon Koran v. I. E. John (AIR. 1969 SC. 73) and Ram Kristo v. Dhankisto (AIR. 1969 SC. 204). The view expressed in the first of these decisions cited above is as follows: "Obviously the contention of the appellant was that as the decree stood in his name, his agent cannot proceed with its execution as he desired to take into his own bands the execution proceedings. 1969 SC. 73) and Ram Kristo v. Dhankisto (AIR. 1969 SC. 204). The view expressed in the first of these decisions cited above is as follows: "Obviously the contention of the appellant was that as the decree stood in his name, his agent cannot proceed with its execution as he desired to take into his own bands the execution proceedings. The above contentions of the appellant were purely legal contentions; if they are valid, they go to the root of the matter and therefore the High Court was not right in brushing aside those contentions on the ground that those contentions had not been taken in the pleadings or urged before the executing court." In the latter case, the view taken by the Supreme Court is expressed as follows:- "Therefore, even assuming that the contention as to the invalidity of the said exchange under S.27 was raised for the first time before the High Court, the language of sub-s. (2) being absolute and clear, the High Court had to take notice of such a contention and was bound to hold such an exchange as invalid if it was shown that sub-s. (1) of S.27 applied to that transaction." Though these observations of the Supreme Court have been made in different contexts, the principle that emerges seems to be that where the question of law goes to the very root of the matter and has bearing to the jurisdiction of the court to decide the matter, even if raised for the first time in the High Court only, it cannot be brushed aside. Applying this principle to this case. I am inclined to take the view that in spite of the fact that there has not been any specific pleading in this behalf in the courts below, the appellant is not precluded from raising for the first time in this Court the plea that on the facts of the case and the evidence adduced be is entitled to the benefits of S.106 of Act 1 of 1964 as amended by Act 35 of 1969. 9. It is next contended by Sri T. K. Kurien that S.106, at any rate, could not be applied to the facts of this case. 9. It is next contended by Sri T. K. Kurien that S.106, at any rate, could not be applied to the facts of this case. It is the contention of the learned counsel that the land in question is a small plot situated in a busy part of Quilon town, and that inasmuch as the land or the building thereon has absolutely nothing to do with the agrarian reforms, Act 1 of 1964 cannot be applied to the facts of the case. The validity of S.106 of the Act has not been challenged before me. All that the learned counsel submits, as I understand him, is that S.106, as it is, cannot be applied to the facts of this case. Reliance is placed by the learned counsel on the decision of the Division Bench of this Court in Sankaran Nambissan v. Sarvothama Rao (1972 KLT. 891) wherein Raghavan C. J. has held as follows: "The land is land within the Calicut City and is to be used only for putting up sheds for a school: the land has nothing to do with agriculture or agrarian reform: the purpose for which the land is let does not also further any agrarian reform". The Division Bench had no occasion to consider the validity or applicability of S.106 of Act 1 of 1964. The facts of the case show that the Division Bench was concerned with the contention whether fixity of tenure under S.13 of Act 1 of 1964 was available to the person claimed to be the tenant in that case. It would appear that on the facts of the case the Division Bench found that there was no question of any agrarian reform where a plot of land in the City was leased for the purpose of putting up a shed for a school and that such a lease does not entitle the lessee to claim fixity of tenure by virtue of S.13 of Act 1 of 1964 as amended by Act 35 of 1969. I do not think that that conclusion could be applied to the facts of this case where the building is being used for commercial purpose, the original lease itself being for commercial purpose, and the protection sought is under S.106 of the Act, not fixity of tenure under S.13 of the Act. Sri. I do not think that that conclusion could be applied to the facts of this case where the building is being used for commercial purpose, the original lease itself being for commercial purpose, and the protection sought is under S.106 of the Act, not fixity of tenure under S.13 of the Act. Sri. Kurien, however, draws distinction between the cases ordinarily contemplated under S.106 of the Act on the one hand, and the voluntary sale of building as in the present case on the other, I am afraid, this argument would lose much of its weight when it is viewed in the context in which the transaction had taken place. In terms of Ext. P-l it was required that after the lapse of five years the appellant should surrender the building receiving a sum of Rs. 1000/- by way of compensation. By whatever name it may be called, whether surrender, sale. or both, as the nomenclature shows, it cannot be accepted that that is a case of sale as such without doing violence to the spirit and language of the provisions in the Kerala Land Reforms Act. It has been held as early as in 1965 that "S. 13 is a bar to eviction from a holding notwithstanding anything to the contrary contained in any law, custom, usage or contract or in any decree or order of the court and that the word "tenant" is used In the Act to include quondam tenants also; otherwise a tenant will cease to get protection when a decree is passed for eviction." as decided by a Division Bench of this Court in Gopinatha Panicker v. Joseph (1965 KLT. 870). In that judgment, on facts of the case, it has also been observed "The argument may be sound according to the Transfer of Properly Act but not under Act 1 of 1964 which contains a provision similar to Act VIII of 1950". This view of the Division Bench has been quoted. with approval by a Full Bench of this Court in Ouseph Lonan v. Kochunarayaru Pisharody (197I KLT. This view of the Division Bench has been quoted. with approval by a Full Bench of this Court in Ouseph Lonan v. Kochunarayaru Pisharody (197I KLT. 155)-Mathew J. who delivered the judgment for the Full Bench, in Para.4, at page 158, has observed as follows:- "But the scheme of S.13 is to confer fixity of tenure on such 'trespassers' for the reason that they came into possession of the property as tenants and not by trespass; their continuance in possession notwithstanding the determination of the tenancy though technically a trespass being clearly referable to their lawful entry as tenants. This h the view taken in Gopinatha Panicker v. Joseph 1965 KLT. 870 and Ayissabi v. Choyi 1966 KLT. 757, as to the scope and purpose of the section". This observation of the Full Bench, I think, will be of great significance in a case like this where the appellant entered the premises lawfully and continued to be in possession in spite of having received the value of improvements and executed a "deed of surrender and sale". In spite of the execution of Ext. P-2 the appellant cannot be characterised as a trespasser except possibly in a technical sense. I am, therefore, of the view that the appellant is entitled to raise the plea that he is entitled to the protection under S.106 of Act 1 of 1964 as amended by Act 35 of 1969. As the evidence in this case is sufficient to uphold that plea, I do not think that in spite of the fact that this plea has not been specifically raised in the courts below, there is any need for remanding the matter to the trial court. In this view I set aside the judgment and decree in O. S. No. 237 of 1970 as confirmed in A. S. No. 235 of 1972. The other appeal also has to be allowed, because as long as the appellant is entitled to continue to be in possession, the respondent has no legal right to obstruct the appellant from carrying on his business or keeping peaceful possession of the premises. O. S. No. 199 of 1970 is, therefore, decreed as prayed for in so far as it relates to the relief of injunction. O. S. No. 199 of 1970 is, therefore, decreed as prayed for in so far as it relates to the relief of injunction. The appeals are allowed as above, but in the circumstances of the case, and particularly ia view of the fact that the point on which the second appeals have been allowed has been raised in this Court only, the parties are directed to suffer their respective costs throughout. Leave to appeal to the Division Bench granted.