Sulaikha Beevi v. K. C. Mathew — 1996 DIGILAW 526 (KER)

Judgment :- Mohammed, J. The prime question involved in this appeal is whether the first respondent-tenant is entitled to protection under S.106 of the Kerala Land Reforms Act, 1963 (for short 'the act). The first respondent claimed permanent tenancy in the suit filed by the appellant-landlord under S.24 and O. VII R.1 of the Code of Civil Procedure for eviction under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Rent Control act)- The eviction was claimed under Ss.11(3),11(4) (i) and (iii) of the Rent Control Act. The Land Tribunal to which the question of tenancy was referred under S.125(3) of the Act, found that the first respondent is entitled to protection under S.106 of the Act placing reliance on the lease deed dated 14.4.1956 produced before it (hereinafter referred to as'Ext. B9 ). The contention of the appellant is that the leasehold right under Ext. B9 was specifically surrendered and a fresh lease deed was executed on 1.1.1962 (hereinafter referred to as 'Ext. A2). Therefore, the question whether there is surrender of the leasehold right in favour of the appellant also arises for decision in this appeal. The relevant facts involved in this appeal are summarised thus: The suit building and appurtenant land originally belonged to deceased father of the appellant. It was demised under Ext. B9 lease deed dated 14.4.1956 executed by him in favour of the first respondent for a period of 5 years on a monthly rent of Rs. 100/-. The said lease was terminated and the property was surrendered on 1st January 1962. On the same day, the first respondent executed a fresh lease deed as per Ext. A2 in favour of the owner for a period upto 30th April 1966 agreeing to pay the rent at specified rate for different periods. The rent fixed for the period from 1.1.1962 to 30.4.1962 was at the rate of Rs. 120/- per month and thereafter there was increase in the rent at the rate of Rs. 5/- per month in every succeeding year. On expiry of the term of lease the first respondent had agreed to surrender possession; however, he continued to hold the possession even after 30.4.1966. While so, the owner of the leased premises died on 20.7.1974. 120/- per month and thereafter there was increase in the rent at the rate of Rs. 5/- per month in every succeeding year. On expiry of the term of lease the first respondent had agreed to surrender possession; however, he continued to hold the possession even after 30.4.1966. While so, the owner of the leased premises died on 20.7.1974. As per the decree in O.S. No. 177/1973 of the Sub Court, Trivandrum the appellant, the daughter of the deceased landowner, became the owner of the suit property. Since the tenant had defaulted in payment of the rent from 1.5.1974 the appellant issued a notice under S.106 of the Transfer of Property Act to him terminating the lease from 31.5.1976. The first respondent however refused to vacate the premises and therefore, a petition for eviction O.P. (BRC) No. 176 of 1976 was filed under Ss.11(3) and 11(4)(iii) of the Rent Control Act. The first respondent resisted the application claiming permanent tenancy alleging that the building was constructed by him and the timber business in the leased building was being carried on by the firm called M/s. K.C. Mathew and Son (second respondent). In view of this claim, the Rent Control Court rejected the application for eviction. In the aforesaid background, the present suit O.S.113/ 77 was filed for eviction of respondents from the plaint schedule building and appurtenant land with arrears of rent under Ss.11(3) and 11(4)(1) and (iii) of the Rent Control Act. The suit was resisted by the first respondent by denying title of the appellant and also on the ground that he is entitled to get protection under S.106 of the Act. In view of this claim of permanent tenancy, the question was referred to the Land Tribunal, Alleppey under S.125(3) of the Act. The Land Tribunal numbered the reference as O.A. No. 1175 of 1978 and conducted the enquiry. The Tribunal however placed reliance on the recitals contained in paragraph 2 of Ext. B9 and found that the building was constructed by the first respondent at his own cost using some articles belonging to the appellant. It further found that the building was constructed prior to 30.5.1967. Thus, the Tribunal held that the respondent is entitled to get the benefit under S.106 of the Act. B9 and found that the building was constructed by the first respondent at his own cost using some articles belonging to the appellant. It further found that the building was constructed prior to 30.5.1967. Thus, the Tribunal held that the respondent is entitled to get the benefit under S.106 of the Act. The learned Munsiff accepted the finding of the Land Tribunal as required to do under S.125(5) of the Act and refused order of eviction. However, while upholding the title of the appellant the trial court passed a decree for realisation of rent. Both the appellant and respondents filed appeals before the District Court, Trivandrum. The lower appellate Court dismissed both the appeals holding that the respondents are entitled to get benefits under S.106 of the Act but they are liable to pay arrears of rent to the appellant as decreed by the trial court. It is against the judgment and decree in A.S. No. 432 of 1982 passed by the lower appellate Court the present second Appeal has been filed. 3. What are the requirements to be established in order to sustain a plea of immunity from eviction under S.106 of the Land Reforms Act? Firstly the land in respect of which the immunity from eviction is claimed shall be one leased for commercial or industrial purpose. Secondly, lessee had constructed building for such purposes before 20th May 1967. When these requirements are proved, the lessee shall not be liable to be evicted from the land notwithstanding anything contained in the Act, or any other law or in any contract or in any order or decree of court. In case the immunity from eviction is thus established, the lessee shall however be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every twelve years. This is what actually the first respondent claims in this case. The question to be decided in this context is whether the first respondent has succeeded in establishing the aforesaid requirements under S.106 of the Act. This question can only be answered after analysing the nature of the leased hold right claimed by the first respondent by virtue of Ext. B9 dated. 14.4.1956 and Ext. A2 dated 1.1.1962. 4. The question to be decided in this context is whether the first respondent has succeeded in establishing the aforesaid requirements under S.106 of the Act. This question can only be answered after analysing the nature of the leased hold right claimed by the first respondent by virtue of Ext. B9 dated. 14.4.1956 and Ext. A2 dated 1.1.1962. 4. It has come out in evidence that the first respondent had taken out the premises in 1120 M.E. (1945 A.D.) from the the original owner for the purpose of carrying on timber business and he had constructed a shed for installing a sawmill. Ext. B9 was executed by the appeal ant's father in favour of the first respondent stating that the land in question has been leased out to him prior to 1956 and the latter had been conducting the business in timber there. The recitals contained in the above document would show that the tenant was continuing in possession and he had constructed an office room using materials belonging to the appellant. What was leased out as per Ext. B9 is an office room and the land where a shed was constructed by the lessee for doing timber business. The lease was for a period of five years on a monthly rent of Rs. 100/-. It is provided in Ext. B9 that at the end of the said term the lessee will surrender the land with the office building and without claiming any compensation for the said building. The lease deed further provides that the lessee had agreed to remove the existing shed and all other sheds that he may be putting up for hi s saw mill. With the expiry of the lease period with effect from 14.4.1961 lessee's right to occupy the property under Ext. B9 was extinguished and his further continuance could only be with the assent of the lessor in view of the provision contained in S.116 of the Transfer of Property Act. 5. On 1.1.1962, the first respondent had executed a lease deed (Ext. A2) in favour of the owner. There he states that the suit properties of building and land are in the possession and enjoyment of the lessor. He further states in the last portion of the deed that he had surrendered the land, which he had taken on lease after the expiry of the term. A2) in favour of the owner. There he states that the suit properties of building and land are in the possession and enjoyment of the lessor. He further states in the last portion of the deed that he had surrendered the land, which he had taken on lease after the expiry of the term. He also adds that since he wanted to continue the business in that premises he had requested the lessor to grant the building and premises on rental basis again. It was pursuant to his request, the lease was granted to him and therefore, he had executed Ext. A2 in favour of the owner for a period of four years and four months. He had also agreed that at the end of the above period he would vacate the land and building without raising any dispute. In this context, it must be recalled that under Ext. B9, the first respondent had already agreed that at the end of the above period, he would surrender the land and building without claiming any compensation. Accordingly by Ext. B9, he had given up the building itself in favour of the lessor. In fact, the first respondent had acted to his promise in terms of the recitals contained in Ext. B9 by executing Ext. A2 in the year 1962. Thus, the first respondent had explicitly accepted that the building belongs to the landlord. 6. Thus, a combined reading of Exts. B9 and A2 brings forth the following conclusions: (i) The building and appurtenant land belongs to the landlord, (ii) The first respondent had surrendered to the landlord the building and the land which was taken by him as per Ext. B9 lease deed. (iii) The first respondent had again taken the same building and appurtenant land on fresh lease agreeing to pay the rent at the rate specified therein for a period of four years and 4 months, that is to say, from 1.1.1962 to 30.4.1966. (iv) The first respondent will vacate the building and premises in the same condition on the expiry of the fresh lease period without raising any dispute or objection. 7. It was argued on behalf of the appellant that the lease in currency between the parties is the one created as per Ext. A2 deed dated 1.1.1962. In other words, the contention is that the leasehold properties covered by Ext. 7. It was argued on behalf of the appellant that the lease in currency between the parties is the one created as per Ext. A2 deed dated 1.1.1962. In other words, the contention is that the leasehold properties covered by Ext. B9 had been surrendered and a fresh arrangement had been arrived at as per Ext. A2. S.111 of the T.P. Act deals with the determination of a lease of immovable property. What is pleaded is that Ext B9 lease had been determined by means of express surrender and also by implied surrender as envisaged under clauses (e) & (f) of S.111. Those clauses are thus: "111. Determination of lease - A lease of immovable property, determines - (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to lessor, by mutual agreement between them; by implied surrender; We have noticed herein before that there was surrender of the leasehold properties to the lessor in view of the recitals contained in Ext. A2 fresh lease deed. This signifier the express surrender in this case. There is an implied surrender if the lessor grants new lease to his lessee in respect of the same property. If the lessee accepts a new lease it ipso facto determines the old lease and results in surrender. A new lease could not of granted unless the old one was surrendered. 8. On behalf of the respondents it was pointed out that there was no physical handing over of possession of leasehold property in favour of the appellant and hence it could not be held that there was surrender of property known to clause (e) or (f) on S.111 of the T.P.Act. This argument does not appear to us to be sound. The delivery of physical possession by the tenant to the landlord is not a pre-requisite for an effective and valid surrender under S.111(e) & (f). The Supreme Court in Smt. Kamlabai & Ors. v. Mangilal Dulichand Mantri (AIR 1988 SC 375), after discussing the decisions in Foster v. Robinson (1950) 2 All. E.R.343) and Oastler v. Henderson (1877) 2 QBD 575) held thus: "It is thus clear that when the parties surrendered the tenancy and substituted it by a fresh arrangement merely because physically the possession was not handed over is of not much consequence. E.R.343) and Oastler v. Henderson (1877) 2 QBD 575) held thus: "It is thus clear that when the parties surrendered the tenancy and substituted it by a fresh arrangement merely because physically the possession was not handed over is of not much consequence. Apparently in the present case also by mutual agreement, the tenancy came to an end and by arbitration what was sought was an arrangement for time on payment of damages for use and occupation. Admittedly, it did not either continue the old tenancy or started any new one. This substitution of new arrangement and the determination of the old by mutual agreement clearly indicates that the tenant surrendered his tenancy rights and the Court below was not right in coming to the conclusion that the surrender is not there as possession was not handed over". (Italics supplied) 9. Subramonian Poti, J. (as he then was) in a similar set of facts, speaking for the Division Bench in S.A. No. 957 of 1973 explicitly laid down the legal position thus: "It is said that this would suggest that there was only attornment and not creation of a new lease. It is natural that the parties should reach some understanding about the building on the date of the new lease. The building is recognised as belonging to the defendants 1 to 3, who entered into the lease arrangement and parties voluntarily agree upon a fresh arrangement with regard to that building in the lease deed, namely that of demolition or surrender on receipt o: its value. It is open to parties to enter into such agreement. We have no hesitation to find that a new arrangement had been entered into by defendants 1 to 2 which would necessarily mear that the earlier lease was surrendered. Any lease may terminate not necessarily by an express surrender but by several other means one of which is implied surrender and then the lessor and lessee agree upon execution of a new lease deed and agree to hold under the new lease it may be possession to infer implied surrender In the circumstances we have to hold that the earlier lease had been surrendered and the parties are governed by Ext. P6". (Italics supplied) 10. P6". (Italics supplied) 10. In Konijeti Venkayya & Ann v. Thammana Pada Venkata Subbarao (AIR 1957 SC 619) the Supreme Court observed: "Implied surrender is however, recognised and provided for by S.111 clause (f) of the T.P. Act and the illustration thereto which refers to a lessee accepting from his lessor a new lease of the property leased to take effect of during the continuance of an existing lease. The illustration is obviously not exhaustive of cases of implied surrender". In J.J. Pancholi v. Sridharjee and Ors. (AIR 1984 All. 130) the Court observed: "We have carefully considered the submissions made before us. S.111(f) of the T.P. Act provides for the determination of a lease of immovable property by implied surrender. If a lessee accepts a new contract of tenancy, it operates as surrender of old tenancy for a lease cannot be granted unless the old tenancy is surrendered". (Italics supplied) From the aforesaid decisions it is axiomatic that implied surrender can also be inferred from the conduct of the parties. Thus, in the factual premise coupled with the aforesaid legal framework we are convinced that Ext. B9 lease had been determined in the matter provided under clause (e) & (f) of S.111 of the T.P. Act. and a fresh lease had been created as per Ext. A2. 11. The next question that arises for consideration is whether the first respondent has established the requirements for claiming protection under S.106 of the Act. In view of the discussion herein above it is obvious that the current lease operating between the parties is the one evidenced by Ext. A2 deed. It is apparent that Ext. A2 lease has been granted for commercial or industrial purpose. But the question is whether the first respondent has constructed any building for such purpose before 20.5.1967. As per Ext. A2 lease executed by the first respondent the building involved therein does not belong to him. He has explicitly expressed therein that the building and land belongs to the landlord. Therefore in the nature of the lease there is no scope for any construction activity in the leasehold property. The first respondent had not constructed any building or any other structure in the land either before 20th May 1967 or after 1.1.1962, the date on which Ext. A2 was executed. Therefore in the nature of the lease there is no scope for any construction activity in the leasehold property. The first respondent had not constructed any building or any other structure in the land either before 20th May 1967 or after 1.1.1962, the date on which Ext. A2 was executed. In the absence of such construction activity in the leased land, lessee will not get any protection even on the basis of 'non obstante' clause contained in the above section. 12. With regard to the applicability of S.106 of the Act in a similar factual situation the Division Bench of this Court in S.A. 957 of 1973 supra observed thus: "The first requirement in the above clause is that the lessee, his legal representative or assignee must have constructed the building. The lessee can construct a building in the character of the lessee only after the lease. If the building was already in existence constructed by some other person it cannot be said to have been constructed by a lessee. Earlier, construction by the prior lessee of the same property under a lease, which had terminated is not a construction by a lessee within the meaning of S.106(1) of the Act. For the purpose of the Section, the construction must be pursuant to the lease and if it was already in existence it cannot be said to have been constructed by a lessee, though historically speaking, it might have been constructed by some former lessee at some point of time. The construction by some person prior to the creation of the lease with which we are concerned could not satisfy the requirement of S.106". (Italics supplied) K. Sumumaran, J. speaking for another Division Bench of this Court in S.A. No. 189 of 1984 observed: The principle, however, applies when he who claims the benefit of S.106 will have to satisfy other requirements and conditions contained in that section. If there be extinction of old lease and the creation of new one, and if, under the new lease, no construction activity which is a condition precedent of S.106, had been carried out, then the defendant will not be entitled to the benefit of S.106". 13. In view of what is discussed herein above, it is crystalline that the first respondent is not entitled to claim the protection available under S.106 of the Act. 13. In view of what is discussed herein above, it is crystalline that the first respondent is not entitled to claim the protection available under S.106 of the Act. The above conclusion can also be tested by examining whether the lessee who had accepted the new lease after expressly surrendering the earlier one is estopped from claiming the benefits on the basis of the lease already surrendered. This form of estoppel is called estoppel by convention. Spencer Bower and Turner says in "The Law Relating to Estoppel by Representation", thus: "This form of estoppel is founded, not on a representation of fact made by a represent or and believed by a representee, but on an agreed statement of facts the truth of which has been assumed, by the convention of the parties, as the basis of a transaction into which they are about to enter. When the parties have acted in their transaction upon the agreed assumption that a given state of facts is to be accepted between them as true, then as regards that transaction each will be estopped against the other from questioning the truth of the statement of facts so assumed". (Italics supplied) Dixon, J. of the High Court of Australia propounds as to how mutual estoppel takes place. He said in Grunt v. Great Boulder Proprietary Gold Mines Ltd. (1938)59CLR 641): "It is important to notice that belief in the correctness of the facts or state of affairs assumed is not always necessary. Parties may adopt as the conventional basis of a transaction between Them an assumption which they know to be contrary to the actual state of affairs. A tenant may Know that his landlord's title is defective, but by accepting the tenancy he adopts an assumption, which precludes him from relying on the defect. Parties to a deed sometimes deliberately set out a hypothetical state of affairs as the basis of their covenants in order to create mutual stoppel."Surrender by operation of law or implied surrender is also founded upon estoppel. In Law of Landlord and Tenant by Hill and Redman it is said: "The lessor had no power to grant the new lease except upon the footing that the old lease is surrendered, and the lessee, being a party to the grant of the new lease, is estopped from denying the surrender. In Law of Landlord and Tenant by Hill and Redman it is said: "The lessor had no power to grant the new lease except upon the footing that the old lease is surrendered, and the lessee, being a party to the grant of the new lease, is estopped from denying the surrender. Consequently the acceptance of the new lease operates as a surrender of the old one". 14. "First, that every estoppel ought to be reciprocal, that is, to bind both parties". This is what Coke said. This is a principle of mutuality, that is to say, the estoppel by deed must be mutual that both parties must be estopped by the recital. The true construction of the deed may show that it was the intention of the parties that the recital should operate as against both parties. Spencer Bower and Turner said in 'The Law Relating to Estoppel by Representation': "It is not to be thought that the abandonment of the requirement of mutuality must detract from the conception of estoppel by deed as an estoppel by convention; where the estoppel is of one party only, its foundation lies in the expressed convention of the parties (on the true construction of the deed) that one party should be held to the assumed state of facts set forth in the recital, the other party taking no responsibility for it." The legal position is being thus, it may be recalled as to how first respondent could detract from the expressed recitals made by him in Ext. A2. When he is governed by estoppel by deed, how could he seek to obtain the protection available under S.106 of the Act. He should be held to the assumed state of facts set forth in the recital contained in Ext. A2. 15. When a party detracts from the principle of estoppel by deed, it cannot be said the court has no power to set right the affairs. The function of the court is very well noticed in the Full Bench decision of this Court in Anandan Nadar v. Ramachandra Menon (1976 KLT 448). It said: "A contractual tenant continuing as tenant after the term specified in the contract would be entitled to protection as a statutory renant. But a Tenant can validly enter into a contract to hold the leasehold property under a different relationship on the expiry of the term of the lease. It said: "A contractual tenant continuing as tenant after the term specified in the contract would be entitled to protection as a statutory renant. But a Tenant can validly enter into a contract to hold the leasehold property under a different relationship on the expiry of the term of the lease. If the relationship of the parties was agreed to be governed by a fresh arrangement, it is open to the Court to recognise and enforce such arrangement unless the court has reason to find that the arrangement has been reached only as a device to get over the provisions of the Act. That a tenant can surrender the premises leased out to him admits of no doubt. It is also open to him to enter into a fresh arrangement. It also seems to be beyond controversy that a Court is entitled to examine an arrangement under which a surrender and a fresh contract is pleaded to ascertain whether it is only a make belief and really the parties continue to be governed by the same relationship". It is inconceivable that there was an attempt by the parties to the fresh arrangement evidenced by Ext. A2 to have 'make believe' relationship between them. The recitals contained in Ext. A2 are unambiguous, meaningful and certain. The real relationship as expressed by the executor in Ext. A2 is dominant and he cannot therefore, be allowed to detract therefrom so as to get protection from elsewhere. 16. Seeing the situation as above, the learned counsel for the respondents plunged this court into discomfiture facing itself to a totally inconsistent and contradictory pleas. The prominent among them being the alleged invalidity of the leases evidenced by Exts. B9 and A2 to which the first respondent yielded all the time throughout for want of registration as required under S.107 of the T.P. Act and S.49 of the Registration Act. Why did he opt to raise the question at this juncture alone? He found out an answer to it in the form of a collateral plea that once the leases are found to be void then there is no question of surrender, either expressly or impliedly or by operation of law. Once the efficacy of Exts. B9 & A2 effaces, counsel adds, they are referrable only to the purpose of seeing the continuance of possession, which existed prior to the execution of Ext. B9. Once the efficacy of Exts. B9 & A2 effaces, counsel adds, they are referrable only to the purpose of seeing the continuance of possession, which existed prior to the execution of Ext. B9. When the origin of the possession is so traced the construction activity in the leasehold land by the lessee is tangible, so that the counsel perceives the attainability of protection under tenancy statute. In order to urge these contentions, the counsel calls in aid the provisions of O. XLIR. 22 of the Code. 17. The question to be examined is whether the provisions contained in R.22 of O. XLI would authorise the litigating parties to adopt the inconsistent pleas at different stages of a suit. R.22(1) which is relevant for the present purpose is ectyped hereunder: 22. Upon hearing respondent may object to decree as if he had preferred separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow. Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is wholly or in part, in favour of that respondent. The above rule no doubt, gives sanction to the respondents in the appeal, though he may not have appealed from any part of the decree, not only to support the decree but also state the finding against him in the court below in respect of any issue ought to have been in his favour. The above rule no doubt, gives sanction to the respondents in the appeal, though he may not have appealed from any part of the decree, not only to support the decree but also state the finding against him in the court below in respect of any issue ought to have been in his favour. He is also allowed to take cross-objection to the decree, which he could have taken by way of appeal. Admittedly, the first respondent has not filed any cross-objection in the present appeal. Then what remains is that he can support the decree and also urge that the finding against him in the Court below in respect of any issue ought to have been in his favour. The respondent can support the decree only on the basis of his pleadings in the suit. So, also he can plead that the finding against him in the Court below in respect of any issue ought to have been in his favour. Here also the respondent cannot travel beyond his pleadings and adopt inconsistent positions. In this context, it 1. Is the plaintiff entitled to recover possession of the plaint schedule property. 2. Are the defendants entitled to the benefits of S.106 of the Land Reforms Act. 3. Are any of the buildings in the plaint schedule constructed by the first respondent. All these issues were decided in favour of the defendants by the trial court on the basis of the order passed by the Land Tribunal on reference under S.125(3) of the Act. Consequently, there is no finding, which works against the respondent to which the protection under the above rule requires. 18. The predominant plea that has now been raised is that Ext. B9 and Ext. A2 leases are void for want of registration. Such a contention has not been raised or pleaded at any stage of the proceedings except at present during the final hearing of the appeal. On the other hand, what was pleaded is that Ext. A2 is a renewal of Ext. B9 lease deed and that the defendant was ready and willing to pay the rent due under the contract of tenancy. There was no denial of Exts. B9 and A2 nor was there any plea that they are invalid for want of registration or for other reasons. We have analysed the recitals contained in Exts. B9 lease deed and that the defendant was ready and willing to pay the rent due under the contract of tenancy. There was no denial of Exts. B9 and A2 nor was there any plea that they are invalid for want of registration or for other reasons. We have analysed the recitals contained in Exts. B9 and A2 and found that the first respondent had surrendered the building and land which was taken by him as per Ext. B 9 lease deed and that he had then executed a fresh deed Ext. A2 in favour of the landlord. It is fresh lease deed containing new terms and conditions for a period of four years and four months and it cannot under any circumstance be termed as a renewal. When there is express surrender of earlier leasehold right and execution of fresh lease-deed by the lessee, the question of renewal does not arise. He is also estopped from raising such contentions as he is bound by the recitals contained in Ext. A2 deed. 19. Lord Du Paroq in Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd. (AIR 1946 PC 97) observed, while exaiming the new pleas raised in the appeals, to the following effect: "Where a plea in any form is not taken before the trial court, there is no trace of it in the pleadings of the party, it is not the subject of an issue, the trail court does not refer to the plea in its judgment, nor is any evidence led with regard to it, it is not open to the party to take such a plea for the first time before the appellate court". One of us (Mohammed, J.) in Balakrishna Menon and Ann v. Padmavathy Amma and another (AIR 1993 Kerala 218) observed: "A party to a litigation cannot be allowed to take a contradictory or inconsistent pleas one at trial stage and another at appellate stage. His contention in a proceeding from beginning to the end shall be consistent and uniform. It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of his opponent. This wholesome doctrine applies to the successive stages of the same suit. It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of his opponent. This wholesome doctrine applies to the successive stages of the same suit. The above position of law is laid down in Dwijendra Narain Roy v. Joges Chandra De, AIR 1924 Cal. 600". (Italics supplied) We have no hesitation to apply the above doctrine against the first respondent who is wittingly raises inconsistent pleas one at the trial stage and another at the appellate stage. The consistency of plea at the various stages of the same suit has to be conserved in public interest particularly in the interest of the litigating parties. 20. In spite of all our antipathy to the manner in which the above plea has been raised we do not see any worthiness in it. We have noticed the principle laid down in the decision rendered by G. Viswanantha Iyer, J. in Neelakantan Sreedharan v. Subba Bhakthan Narayana Bhaktan (1975 KLT 128). "The rent deed is executed by the lessee alone. It is also not registered and therefore, it is inadmissible to prove the creation of a lease by an instrument. But, it is admissible to prove the creation of a lease by oral agreement accompanied by delivery of possession as mentioned in S.107 of the T.P. Act. The rent deed can be relied on to establish the rural relationship between the parties. It contains an admission or an acknowledgement by the defendant who is sought to be made liable that he is a tenant and that is the best evidence that one can possibly have as to the oral agreement of a lease. It is well known that documents relating to sales, leases and mortgages come into existence only after agreements arrived at between the parties to these transactions. The lessor and lessee generally agree to the terms of the tenancy before hand and then reduce to writing what has been agreed upon. In such cases oral agreement of lease can be spelt out of the rent deed executed by the lessee and there can be no bar that would prevent a court from looking into such a document for this purpose ". (Italics supplied) It is overwhelmingly certain that the transactions Exts. In such cases oral agreement of lease can be spelt out of the rent deed executed by the lessee and there can be no bar that would prevent a court from looking into such a document for this purpose ". (Italics supplied) It is overwhelmingly certain that the transactions Exts. B9 and A2 were followed by possession being given to the tenant and tenant in turn pays rent to the landlord. In the absence of registration, it may be possible to say that the transaction has transformed itself into new oral lease but it was accepted by both parties. An oral lease for more than one year if accompanied by delivery of possession is valid for one year and the lessee continuing in possession thereafter with the assent of the lessor becomes a tenant by virtue of the provisions contained in S.116 of the Transfer of Property Act, but he is' bound by terms of old lease by implication. 21. Counsel for the respondents points out that the trial court had no occasion to consider whether the claim for eviction under S.11 (3), 11(4) (i) and 11(4) (iii) of the Rent Control Act has been made out. In other words, the contention is that in case the claim of permanent tenancy under S.106 is found against the tenant the whole question shall be remitted to the trial court for fresh disposal. In this context, it is apt to say that the whole issue is reverberating in our mind in the background that first petition for eviction O.P. (BRC)No.176/76 was filed by the appellant in the year 1976. This second appeal was pending on the register of this court for the last more than ten years. In this premise, we must take recourse to S.103 of the Code, which provides thus: 103. Power of High Court to determine issue of fact - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal - a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in S.100. If the evidence in record is sufficient this court will be justified in determining the issue regarding recovery of possession on the grounds under Ss.11(3) and 11(4)(iii) of the Rent Control Act which are material here in the present case. The sufficiency of evidence contemplated by S.103 is sufficiency for the purpose of a proper judgment in the facts of this case. 22. Let us now examine the pleadings and evidence available in this case in support of the prayer for eviction under Ss.11(3) and 11(4) (iii) of the Rent Control Act. The averments contained in the plaint in support of eviction under the above grounds are as follows: Section 11(3) "The plaintiffs son Iqbal Alimmed has graduated in medicine with the M.B B .S. degree and desires to start a dispensary in the plaint schedule building. He does not own any suitable building in Trivandrum or elsewhere and is dependent on the plaintiff for making accommodation of the said purpose available to him. The plaintiff herself has no possession of any other building suitable to help her son with the accommodation to her disposal". (Para. 4) "As stated earlier the plaintiff wants to obtain surrender of the building from the first defendant-tenant in order that she may make the building available to her son, Iqbal Ahammed for the purpose of his starting a dispensary. The plaintiff is therefore entitled to obtain eviction under Section 11(3) of the aforesaid Act." (Para 6) Section 11(4)(iii) "The first defendant who is carrying on a timber business in the premises has in his own possession and ownership other lands at Karamana, Trivandrum which is reasonably sufficient for his aforesaid requirements and therefore also the plaintiff is entitled to obtain surrender under Section 11(4)(iii) of the Act." (Para. 7) "In the reply notice issued by the first defendant as also in the counter in the O.P. (B .R.C.) No. 176 of 1976 the first defendant has stated that the timber business is being carried on by a firm of which he is the Managing Partner. On enquiry the plaintiff understands that firm mentioned by the first defendant is M/s K.C. Mathew & Son. This firm is impleaded as second defendant in order to make the decree in this suit binding on the firm. On enquiry the plaintiff understands that firm mentioned by the first defendant is M/s K.C. Mathew & Son. This firm is impleaded as second defendant in order to make the decree in this suit binding on the firm. If as the first defendant contends, he has assigned the leasehold to the firm or sublet it to the firm for carrying on its business the said assignment or subletting being made without the consent of the lessor affords the plaintiff an additional ground for obtaining surrender of the property under Section 11(4) (i) of the Act." (Para. 8) It may be recalled that the plaint has been specifically filed under Sections 11(3),11(4) (iii) and 11(4) (i) of the Rent Control Act. 23. The case of the defendants in the written statement as against the above grounds for eviction is as follows: Section 11(3) "The averment in paragraph. 4 that the plaintiff's son wants to start a dispensary in the land, is not true and hence, is denied. The defendant had had obtained fixity of tenure under S.106 of the Kerala Land Reforms Act, 1964 and the plaintiff or any other person claiming valid title to the land has no right to evict the defendants from the land and the building" (Para. 4) Section 11(4)(iii) The land owned by the 1st respondent at Karamana, is not suitable or sufficient enough for the defendants' commercial and industrial activities carried on in the present premises. The commercial activities carried on in the present premises from the year 1120 M.E. onwards, has earned a goodwill, which would be lost for the business, if it is shifted from the present locality. The first defendant has no building in the land at Karamana sufficient for his requirement. Notwithstanding the fact that Kerala Buildings (Lease and Rent Control) Act, 1965 cannot be invoked by the plaintiff for evicting the defendants, it is submitted, that no eviction could be ordered on the ground stated in S.11(4)(iii) of the Building (Lease and Rent Control) Act, 1965". (Para. 7) 24. The provisions contained in S.11(3) of the Rent Control Act provides that the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him. The provisions contained in S.11(3) of the Rent Control Act provides that the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him. Likewise S.11(4)(iii) authorises the landlord to apply for an order of eviction if the tenant already has in his possession a building or subsequently acquires possession of or puts up a building reasonably sufficient for his requirement in the same city, town or village. However, it is necessary to find out whether ingredients of the above provisions are satisfied in this case so as to get an order of eviction as prayed for by the appellant. It is essential therefore, to ascertain the sufficiency of evidence for ordering eviction under Ss.11(3) and 11(4)(iii) of the Rent Control Act. 25. In order to obtain an order of eviction under S.11(4)(iii), the landlord must establish that the building in the possession of the tenant is reasonably sufficient for his requirement. The case of the landlord as alleged in the plaint is that the tenant has other lands in his possession and ownership and that is reasonably sufficient for his requirements. The appellant's husband as P.W. 1, fortified before the trial court that the defendant has other lands of his own at Karamana and he is doing business there. However, the details of the land or building are not available. There must be evidence with regard to the existing facilities available to the tenant in the building owned by the landlord and the building which the tenant subsequently acquired possession. The reasonable sufficiency is a matter, which requires comparative analysis of tenants' requirements. In the dearth of evidence the court has become powerless to determine the question whether the building subsequently acquired by the tenant is reasonably sufficient for his present requirement. The inefficiency of evidence in this regard indubitably prevents us from sanctioning eviction under S.11(4) (iii) of the Act. 26. What remains for consideration in this litigating field is the ground of eviction sought under S.11(3). Under this provision what is required is that the landlord needs the building bonafide for his own occupation or for the occupation by any member of his family. 26. What remains for consideration in this litigating field is the ground of eviction sought under S.11(3). Under this provision what is required is that the landlord needs the building bonafide for his own occupation or for the occupation by any member of his family. On this score, evidence on the side of the landlord is to the effect that her son is a Doctor and she needs the building for establishing a dispensary for him. She has no suitable building in her possession for the said purpose. This material piece of evidence remains uncontroverted. Thus, what is provided is that the landlord has a doctor-son and he needs the building to run a dispensary. There was no cross-examination of PW.1 by the tenant on this aspect of the issue. Even though the tenant denied the aforesaid ground, he did not go to the witness box and prove that the need is not bonafide before the trial Court. The bonafides of the claim that the son of the landlord is a doctor and that he intends to put up a dispensary in the suit building is not even doubted either before the trial court or before the Land Tribunal. The dispute as could be seen from the evidence given by the tenant before the Land Tribuanl while deciding the claim of permanent tenancy is that the building sought to be evicted is not fit for running a dispensary. What is relevant is the choice of the landlord and not of the tenant. It is for the landlord to decide as to how he makes the building fit for use. Normally the said question arises only after obtaining the building. A tenant cannot resist an application for eviction on the ground that the building would be unsuitable for the purpose for which it was sought to be evicted. The first proviso to S.11(3) is satisfied, as there is clear evidence that the landlord is not in possession of any other building of his own. The tenant has no case that he is depending for his livelihood on the income derived from any trade or business carried on in the building in question. That means the second proviso is inapplicable and the remaining provisos are not relevant in this context. The tenant has no case that he is depending for his livelihood on the income derived from any trade or business carried on in the building in question. That means the second proviso is inapplicable and the remaining provisos are not relevant in this context. Thus, the ingredients of S.11(3) for obtaining an order of eviction have been sufficiently satisfied on a careful survey of evidence within the legal framework we are sufficiently persuaded to allow the claim for eviction of tenant under S.11(3) of the Act. We do so. 27. In the result, the judgments and decrees of the courts below are set aside and a decree is passed for recovery of possession of the plaint schedule building and appurtenant land from the defendants with arrears of rent as claimed in the plaint. The appeal is thus allowed. No order as to costs in the circumstances of the case.