Judgment :- 1. Appellants are defendants 1 and 2 in O.S. 34/1968 of the Sub Court, Palghat. The plaintiff (1st respondent therein) filed the suit for injunction and damages. The suit was dismissed on 30-11-1971. Plaintiff filed A.S. 32/1972 before the District Court Palghat and defendants filed cross objections. The appeal and the cross objections were dismissed on 6-9-1973. Plaintiff thereafter filed S.A.1158/1974 before this court. A petition was filed before this court for leave to amend the plaint incorporating recovery of possession of the properties on the strength of plaintiff's title. That petition was allowed and consequently the second appeal was also allowed and the case was remanded to the trial court for fresh disposal. After remand, the learned Sub Judge decreed the suit finding that plaintiff is entitled to recover the suit properties on the strength of his title. The claim of damages was disallowed. Aggrieved by the decree and judgment of the trial court, defendants 1 and 2 have preferred the above appeal. 2. Plaintiff has filed cross objections regarding disallowance of damages by the trial court. 3. The case of the plaintiff is that the plaint schedule properties belonged in Kanam to his father Vaidyanatha Iyer, that after the death of his father, it devolved upon him, that 1st defendant was appointed by Vaidya-natha Iyer as his agent for looking after the cultivation in the properties, that on 13-2-1952 the 1st defendant had executed an agreement in favour of Vaidyanatha Iyer, that Rs. 601/-was paid by the 1st defendant as security for his employment, that the 1st defendant was cultivating the properties as per the agreement till Vaidyanatha Iyer's death, that the 1st defendant continued on the same terms and conditions under the plaintiff, that plaintiff and his father were residing in the Kalam attached to the plaint schedule properties, that the threshing of the crops was being done in the said Kalam, that the 1st defendant used to be paid by way of his remuneration and expenses 300 paras of paddy in Kanni and 200 paras in Makaram, that when the plaintiff wanted to install a motor for the purpose of pumping water to irrigate 4 acres of Balliyal lands situated on the side of the river the 1st defendant raised objections, that the plaintiff was constrained to approach police, that plaintiff sent notice to the 1st defendant terminating his employment, that the 1st defendant replied raising untenable contentions, that neither the 1st defendant nor the 2nd defendant who claims to be a sub-tenant under the 1st defendant do not have any rights over the properties and that the plaintiff is entitled to recover the suit properties on the strength of his title. 4. 1st defendant filed written statement.contending that the properties were demised to him on lease by the father of the plaintiff in Kumbham 1127 M.E. stipulating annual rent of 600 paras of paddy and 600 sheaves of hay. By way of security Rs. 601/-was paid by him to the plaintiff's father. It is further contended that the document referred to in the plaint was executed as demanded by the father of the plaintiff who wanted to circumvent the provision of the tenancy laws then existing and which were on the anvil. The allegation that he was paid salary is refuted. It is also the contention of the 1st defendant that plaintiff's father had allowed remission of SO paras of paddy from the contract rent. The allegation in the plaint that the 1st defendant agreed to be the agent of the plaintiff's father is also denied. 5. The 2nd defendant filed separate written statement adopting the contentions of the 1st defendant and claiming portions of the properties as a sub-lessee under the 1st defendant. 6. The allegation in the plaint that the 1st defendant agreed to be the agent of the plaintiff's father is also denied. 5. The 2nd defendant filed separate written statement adopting the contentions of the 1st defendant and claiming portions of the properties as a sub-lessee under the 1st defendant. 6. Additional written statement was filed by defendants 1 and 2 stating that the plaintiff is not entitled to recover the suit properties on the strength of title. 1st defendant claimed fixity of tenure over the suit properties as a lessee and claimed benefits of the Kerala Act 1 of 1964. 7. The learned counsel for the appellants contended that the trial court went wrong in not considering the evidence in the case in its true perspective. He pointed out that several documents produced by the defendants which would indicate their possession of the suit properties have not been properly understood or considered by the trial court and therefore the judgment and decree of the trial court warrant interference. The learned counsel for the plaintiff submitted that no interference with the judgment and decree of the trial court is called for as the plaintiff's title over the properties has been admitted and as the 1st defendant has failed to substantiate bis case of lease. It is submitted that deliberate avowal of agency in Exts. A2 and A5 coupled with Exts. A6 and A7 would really show that 1st defendant can never be a lessee as contended by him. It is further contended that 1st defendant's possession can be traced only to Exts. A2 and A3 and therefore unless he establishes the lease set up by him, the plaintiff is entitled to recover the properties. 8. Plaintiff's father got rights over the properties as per Ext. A1 dated 17-2-1940. Plaintiff relies on Ext. A2 and contends that the 1st defendant was appointed by his father as his agent to undertake the cultivation of the suit properties. Ext. A2 is dated 18-2-1952. Ext. A5 dated 15-3-1951 was also executed by the 1st defendant in favour of the plaintiff's father. Though the 1st defendant admitted execution of Exts. A2 and A5, he contended that the said documents were not acted upon and was never intended also to be acted upon. Ext. A2 is dated 18-2-1952. Ext. A5 dated 15-3-1951 was also executed by the 1st defendant in favour of the plaintiff's father. Though the 1st defendant admitted execution of Exts. A2 and A5, he contended that the said documents were not acted upon and was never intended also to be acted upon. In the plaint, the case of the plaintiff is that the 1st defendant was engaged by plaintiff's father Vaidyanatha Iyer as his agent to cultivate the properties for a consideration of 500 paras of paddy per annum. Plaintiff relies on Exts. A6 and A7 to establish that Exts. A2 and A5 were really acted upon. Ext. A7 refers to Ext A2 and Ext. A6 refers to Ext. A5. 9. The learned counsel for the appellant contended that there is unassailable evidence regarding the possession of the appellant over the suit properties and that the possession can only be referred to the possession as a lessee as contended by him and the stand of the plaintiff that the appellant is only an agent cannot at all be accepted The learned counsel submitted that documents like cultivation register, levy notice and water tax receipts would go a long way to establish the case of the 1st defendant regarding his lease-hold right of the properties and to demolish the case of the plaintiff as set out in the plaint. pw.1 who was aged only 11 years at the time of Ext. A2 could not have direct knowledge about the arrangements between his father and the 1st defendant with regard to the suit properties. He admitted that he is not aware of the circumstances under which Ext. A2 was executed. Though pw.1 admitted that he had obtained bills for purchase of manure and the same is in his house, no attempt was made to produce them before court. pw.1 also stated that there are accounts regarding the cultivation done in the suit properties but they were also not produced in the court. According to pw. 1, 1st defendant did not spend any amount for cultivation of the properties. As per the recitals in Ext. A2, 1st defendant was bound to spend necessary amounts for the cultivation. Though pw.1 admitted that his father had received levy notice and that he is in possession of the same it was not produced in the court. pw.1 admitted obtaining receipts for payment of water tax. As per the recitals in Ext. A2, 1st defendant was bound to spend necessary amounts for the cultivation. Though pw.1 admitted that his father had received levy notice and that he is in possession of the same it was not produced in the court. pw.1 admitted obtaining receipts for payment of water tax. He stated that there might be such receipts in the name of his father. No such receipts were produced in the court. pw.1 admitted that water tax receipts were not issued in his name. It is also admitted by him that water tax is usually paid by the cultivating tenant. A lame attempt was made by pw.1 to hold that the 1st defendant in collusion with the Village authorities manipulated in producing the documents in the court. But, it is really difficult to hold that for very many years such documents were created by the 1st defendant in collusion with the concerned authorities. Though pw.1 stated that he had obtained levy notice, he admitted that it is not in his possession. Learned counsel for the appellant contended that if Ext. A2 was really acted upon, the Village records, water tax and levy notice would have been in the name of the plaintiff's father and after his death they would have been in the name of the plaintiff and as plaintiff has produced only Exts. A2, A6 and A7 to prove bis case it is indeed difficult to disregard the lease set up by the 1st defendant. There is considerable force in the above contention. 10. The learned counsel for the plaintiff submitted that as the 1st defendant has not denied the execution of Ext. A2, his possession can only be traced to the possession under Exts. A2 and A5 and as Exts. A6 and A7 are there to show that Exts. A2 and A5 have been acted upon and as there is no convincing evidence regarding the lease set up by him, it cannot be held that the 1st defendant is a lessee as contended by him. It is submitted that as per Ext. A2, defendant agreed to act as agent of the plaintiff's father and plaintiff came to know of the 1st defendant's hostile intention only when his attempt to install a motor connection was resisted by him. It is submitted that as per Ext. A2, defendant agreed to act as agent of the plaintiff's father and plaintiff came to know of the 1st defendant's hostile intention only when his attempt to install a motor connection was resisted by him. In Para.4 of the plaint, the attempt made by the plaintiff and the resistance offered by the 1st defendant are stated. In Para.8 of the written statement of the 1st defendant, the attempt by the plaintiff and the objection of the Ist defendant are admitted. The learned counsel for the plaintiff, contended that the above facts would indicate plaintiff's honest belief of possession over the suit properties and at any rate as possession of the lessee is the possession of the owner first defendant cannot succeed in the case unless and until the specific case of lease has been proved. Learned counsel for the appellant contended that the Government imposed levy from 1964 onwards and since then there is evidence to the effect that it was the 1st defendant (appellant) who measured levy to the authorities and this circumstance alone is sufficient to hold that he was never an agent of the plaintiff's father as contended by him. Recitals in Ext. A2 would show that 1st defendant undertook to assist the plaintiff's father in cultivating the properties. The recitals in Ext. A2 disclose that the 1st defendant had no objection to the measurement of levy in the name of plaintiff's father. It is also mentioned that the expenses for cultivation including seed etc. were to be met by the 1st defendant. Remuneration of 500 paras of paddy is payable to the 1st defendant. A deposit of Rs. 601/- is stated to be made in favour of plaintiff's father by the defendant towards security of his employment. As already pointed out in the preceding paragraph though pw.1 claims to be in possession of levy notices and water tax receipts etc. none of them were produced in the court. As against the total failure on the part of the plaintiff to produce documents to establish his case that the 1st defendant is in possession of the property only as per Ext. A2 the latter has produced Exts. B5 to B19 levy receipts. He has also produced Exts. B20 to B24 water tax receipts. Ext. B4 is the certified copy of the water permit issued to the 1st defendant. Exts. A2 the latter has produced Exts. B5 to B19 levy receipts. He has also produced Exts. B20 to B24 water tax receipts. Ext. B4 is the certified copy of the water permit issued to the 1st defendant. Exts. B1 to B3 are the certified extracts from the A register relating to Padoor desam. In the above documents the name of the 1st defendant is seen entered as the person in cultivation of the properties. In view of the documentary evidence in the case it is not at all possible to hold that Ext. A2 has been acted upon. 11. Plaintiff heavily relies upon Exts. A6 and A7 to show that pursuant to Exts. A2 and A5, the 1st defendant acted as the agent of the plaintiff's father. Ext. A6 is dated 18-2-1952 and Ext. A7 is dated 7-3-1953. The suit was filed in 1968. It is pertinent to note that after Ext. A7 there is no document to show that for every succeeding year similar documents were obtained by plaintiff's father or by the plaintiff. In Ext. A2, it has been specifically recited that the 1st defendant should meet the expenses of seed and wages and this was taken into account in fixing the remuneration of 500 paras of paddy. pw.1 deposed that cultivation expenses were met by himself and his father. In re-examination, he stated that these expenses were not deducted from 500 paras of paddy to be paid to the 1st defendant. From the recitals in Ext. A2, it would appear that the deposit of Rs. 601/-made by the 1st defendant as security for his employment is without any basis or meaning. There is evidence in the case that contrary to the recitals in Ext. A2 and the agency set up in the plaint there are several documents in the name of the 1st defendant to prove his possession of the properties and hence it is not possible to hold that Ext. A2 has been acted upon. As there are no documents like Exts. A6 and A7 for years to come, it is also difficult to hold that parties really intended Ext. A2 to be acted upon. 12. Significance of Ext. A8 (Land Tribunal Order in O. A. 594/1976) has to be considered. A2 has been acted upon. As there are no documents like Exts. A6 and A7 for years to come, it is also difficult to hold that parties really intended Ext. A2 to be acted upon. 12. Significance of Ext. A8 (Land Tribunal Order in O. A. 594/1976) has to be considered. Learned counsel for the plaintiff contended that the 1st defendant having filed the Original Application and having failed to adduce the necessary evidence cannot reagitate for the position that he is a tenant of the properties. The Tribunal dismissed the Original Application. Counsel contended that the decision of the Land Tribunal would operate as resjudicata. In the Original Application, plaintiff had filed his counter statement and it happened to be dismissed as the first defendant did not adduce evidence. It is argued by plaintiff's counsel that dismissal of the Original Application owing to the 1st defendant's failure to adduce evidence has to be construed as a case where the matter was heard and finally decided and therefore that decision would operate as res judicata to the contentions of the 1st defendant in the suit. Learned counsel for the appellants contended that the question of res judicata can come into operation only when the conditions under S.11 CPC. exist and so long as the Original Applications was not heard and finally decided the decision of the Land Tribunal cannot operate as res judicata. Ext. A8 would show that O.A 594/1976 was dismissed as the petitioner in the Original Application did not adduce evidence. Learned counsel for the appellants pointed out that in Ext. A8, there is no decision on merits one way or the other with regard to the claim of tenancy set up by the first defendant and as there is no finding against him, it can never be construed that the dismissal of Original Application would operate as res judicata. S 11 CPC. provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between 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 the court. In the decision reported in Shivashankar v. Baikunth (AIR. 1979 SC. 971) it has been held that before a plea can be held to be barred by res judicata, the plea must have been heard and determined by the court, In the above decision, it has been held that the dismissal for default of the judgment debtor of an application filed by him under S 47 CPC. resisting the execution of the decree is not a final decision of the court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed by him. Relying on the above Supreme Court ruling, it has been held in Thilakan v. Vivekchandrika Subba & others (1980 KLT. 363) that dismissal of an earlier application due to the absence of the petitioner is clearly a dismissal not on merits but for default and that being so it cannot be said that the order is passed within the meaning of the expression "heard and finally decided" under S.11 CPC. Adverting to the above decisions, the learned counsel for the appellants contended that Ext. A8 order of the Land Tribunal where there is no finding at all will not operate as resjudicata. In the decision reported in S. T. R. Pillai v. Dhanalakshmi & Co. (AIR. 1972 Madras 190), it has been held as follows: "Dismissal of an application raising certain question for default does not bar the party from filing subsequent application raising the same question since the previous application has not been heard or finally decided by the court." In Ext. A8, no finding was entered by the Land Tribunal with regard to the claim of tenancy set up by the Ist defendant and therefore contention of the plaintiff that he had filed counter statement in the Original Application and hence the dismissal for failure to adduce evidence impliedly would mean that the Land Tribunal had heard and finally decided the controversy between the parties and so it would operate as res judicata is difficult to be accepted. 13. The principle of finality over the conclusiveness of a prior decision or the general principle of resjudicata is applicable even to quasi judicial bodies !ike the Land Tribunal functioning under the Kerala Land Reforms Act. This been made clear in the decision reported in Koran v. Kamala (1977 KLT 358 FB.). 13. The principle of finality over the conclusiveness of a prior decision or the general principle of resjudicata is applicable even to quasi judicial bodies !ike the Land Tribunal functioning under the Kerala Land Reforms Act. This been made clear in the decision reported in Koran v. Kamala (1977 KLT 358 FB.). S.108A of the Kerala Land Reforms Act states that S.11 CPC. would apply to proceedings before Land Tribunal. Counsel for the plaintiff contended that Ext. A8 decision though not on merits will be res judicata as against the 1st defendant who initiated action and by inaction got it dismissed. But, it has to be noted that the Land Tribunal did not decide any controversy between the parties and as there is no finding by Land Tribunal it is difficult to accept the aforesaid contention. There cannot be two opinion that a decision of the Land Tribunal would operate as res judicata between the same parties in a subsequent proceedings. One of the cardinal principles for the application of resjudicata is that the earlier proceedings should have been heard and decided between the parties. As the decision in Ext. A8 is not on merits and as there is no finding with regard to the controversy involved in the Original Application it cannot be said that the dismissal of the Original Application as evidenced by Ext. A8 would operate as res judicata. 14. Learned counsel for the appellant next contended that at any rate the 1st defendant is entitled to the benefit of deemed tenancy as provided under S.7 of the Kerala Land Reforms Act. Learned counsel for the plaintiff contended that the 1st defendant cannot claim benefit under S.7 of the Kerala Land Reforms Act as he failed to establish the specific case of lease set up by him. He also contended that so long as the 1st defendant cannot hold that he was honestly believing himself to be a tenant after having executed Exts. A2 and A5 he cannot invoke the benefits under S.7 of the Kerala Land Reforms Act. It has been held in Kaliyannan v. Narasimha Iyer (1974 KLT. 286) that a person who sets up a specific case and fails to prove it cannot later claim deemed tenancy. As there is overwhelming evidence to prove first defendant's possession over the properties and such possession cannot be compatible with Ext. It has been held in Kaliyannan v. Narasimha Iyer (1974 KLT. 286) that a person who sets up a specific case and fails to prove it cannot later claim deemed tenancy. As there is overwhelming evidence to prove first defendant's possession over the properties and such possession cannot be compatible with Ext. A2 the broad features, circumstances and probabilities of the case can only establish that he is the tenant of the properties. Therefore, the question of deemed tenancy is not very relevant so far as this case is concerned. As there is reliable evidence with regard to possession of the properties by the 1st defendant and as there is evidence to hold that Ext. A2 has not been acted upon the only conclusion possible is to accept 1st defendant's case of tenancy. Therefore, there is really no necessity to consider the deemed tenancy question under S.7 of the Kerala Land Reforms Act. 15. The evidence in the case is far from satisfactory to hold that the 1st defendant has been cultivating the properties only as an agent of the plaintiff as per Ext. A2. We therefore hold that the plaintiff is not entitled to evict the defendants from the suit properties. From the evidence and circumstances of the case, the only inference possible is that 1st defendant is in possession of the properties as lessee under the plaintiff's father and after his death, 1st defendant continued to be sounder the plaintiff. We therefore set aside the judgment and decree of the trial court and the suit is dismissed. In the circumstances of the case, the parties are directed to bear their costs. Trial court has rightly disallowed damages claimed by the plaintiff. There is no reliable evidence for the same. Cross objection is hence dismissed. In the result, the appeal is allowed. There is no order as to costs. Allowed.