Judgment :- This second appeal arises from the judgment dated 17.02.1992 passed by the District Judge, Manjeri in Appeal Suit No.66 of 1988. The Original Suit No.161 of 1966, filed before the Munsiff’s Court perintalmanna had been dismissed on 30.01.1988. consequently, it was the plaintiff’s appeal. The appeal stood allowed and the judgment and decree of the lower court was set plaint schedule property with means profits. The defendants in the suit have come up in appeal. 2. During the pendency of the second appeal, appellants 2 and 27 had passed away and their legal representatives had been brought on record. Mr.M.A. Manhu, learned counsel for the appellants had referred to substantial question of law as arising in this appeal as followings: “a) On the facts and circumstances of the above case the court below right in holding that in the case of agricultural lands leased out for fugitive cultivation and for collecting green manure no tenancy as contemplated and the lease holder is not protected from eviction when the transaction is evidenced by revenue receipts produced by the tenants? b) When the pleadings disclose a tenancy even though it was not specifically pleaded for reference and protection under the Kerala Land Reforms Act. Is not the court bound to refer the question of tenancy to the Land Tribunal under Section 125 of the Kerala Land Reforms Act and revenue receipt and Puncha chits? c) As on the facts and circumstances of the case when question of tenancy arises from the pleadings, was the District Court not bound to consider the question of tenancy and ignore the same merely on the patta as against the revenue receipts and Puncha chits? d) Whether the lease of land as early as 1956 for fugitive cultivation and collection of manure for the cultivation of other lands creating a tenancy as evidenced by the revenue receipts and Puncha chits and under the provisions of the Kerala Land Reforms Act is the District Judge right in construing the same as a permissive possession and by breach of such permissive possession the same becomes which gives rise to a dispute subsequently for seeking the relief of injunction and recovery of possession when the plaintiff failed to prove possession or to obtain the relief for recovery?” 3. Principally the first question, as quoted above, requires to be answered, which will substantially help to resolve the dispute that have been agitated by the parties as early as from 1966. 4. The suit had been filed seeking for a permanent injunction to be issued as against the defendants, but later on it had been amended so as to include an alternative prayer for recovery of possession on the strength of title. Plaint schedule items were jenmom properties of this family of which the plaintiff was a member. A partition as between the members during 1964 resulted in allotment of the scheduled properties to the tavazhi of the plaintiff. At about that time, it had been alleged that there was an attempt on the part of the defendants to trespass. Suit for plaint incorporated prayer for recovery on the strength of title. 5 In the written statement the claim had been disputed. The possession of the properties rested with the defendants, it was contended, and it had been traced that the properties were in the possession of the predecessors in interest of the first defendant. A portion of the plaint schedule properties were being enjoyed by third parties, who were not impleaded to the proceedings. Consequently, according to the defendants, the suit was defective for non-joinder of necessary parties. 6. By a separate written statement, defendants 2 to 6 had reiterated almost that the scheduled property was obtained by the predecessors of the above defendants from the plaintiff Mana for taking green manure and also for making fugitive cultivation. Condition was that they were to pay ‘revenue’. It had been further claimed that the defendants were having other properties from the Mana on lease and for the purpose of cultivation of the said properties, green manure was necessary and for taking the same scheduled properties came to be entrusted with the forefathers of the defendants. They were always in possession and they were also making seasonal cultivation. Further facts pleaded were that the defendants as also their predecessors used to obtain puncha chits for facilitating cultivation in the properties. Rights, if any enjoyed by the plaintiffs, were as a consequence barred by adverse possession and limitation. 7. Although amendments were allowed to be made in the pleadings, and the basis contention of the parties was as in terms extracted above. Rights, if any enjoyed by the plaintiffs, were as a consequence barred by adverse possession and limitation. 7. Although amendments were allowed to be made in the pleadings, and the basis contention of the parties was as in terms extracted above. Of course there was a dispute about the identity of the property, but it seems in view of the report of the Commissioner, such contentions were not prosecuted by the parties in the later stages. 8. Attempt of the defendants was to establish that their predecessors in interest had been in possession of the scheduled properties for a long period and they themselves had later on uninterruptedly continued such possession. They had heavily relied on Exts.B21 to B59, viz., revenue receipts, evidencing payment of revenue to the Government. They pertained to periods much anterior to the date of suit. Revenue receipts were also produced by the plaintiff. But they did not contain survey numbers, but those relief on by the defendants made reference to the respective holdings. The learned Munsiff was of the view that since the Mana of the plaintiff held extensive immovable properties, such receipts, even if went to supplement the oral evidence, were nevertheless sufficient enough to establish the plaintiff’s possession. As it was a suit for injunction, plaintiff was expected to prove his possession beyond doubt. In this area, according to the Court, the plaintiff had failed. 9. With respect to the claim for recovery of the properties, the learned Munsiff had found that there were laches on the part of the plaintiff in the matter of impleading necessary parties. The suit being one for eviction, the Court took the view that all the necessary parties, who have right and possession over the property, necessarily were required to be impleaded in the suit. He had also accepted the contention that the plaintiff, although the Karanavar, was not competent to represent the member of his family. They were expected to come and array themselves as plaintiffs in the suit, and this lacuna went into the root of the matter capable enough to non-suit the plaintiffs. 10. The appellate court, however, was not prepared to ratify the reasoning given by the learned Munsiff for dismissing the suit. They were expected to come and array themselves as plaintiffs in the suit, and this lacuna went into the root of the matter capable enough to non-suit the plaintiffs. 10. The appellate court, however, was not prepared to ratify the reasoning given by the learned Munsiff for dismissing the suit. According to the District Judge, it was “difficult to understand how the suit was dismissed by the lower court after entering finding that the plaintiff’s mana is having title over the plaint schedule property”. It was pointed out that there was no dispute about the fact that the property concerned originally belonged to the Mana. The required mode of enquiry according to the District Judge, was to examine what was the title or tenure enabling the defendants to be in possession of the plaint schedule property against the interests of the plaintiff. There was none. Consequently, the Appellate Court found that the claim put in by the defendants were not precise. Resultantly there was no circumstance to come to a conclusion that their stand is to be recognised as tenancy or deemed tenancy. There was a failure on their part to claim fixity of tenure, which alone would have come to their advantage. 11. Examining the contentions about the right granted for collection green manure and fugitive cultivation, the court entered a finding that it will not amount to a tenancy. At the most, perhaps always persons, including the predecessors in interest had been continuing on the basis of permission alone, which could have been terminated at the will of the landlord. Accordingly, it was noted that as there is permissive possession alone from the landlord there cannot be a claim for adverse possession. At some point of time, this occupation might have been converted to forcible possession, but according to him this was inconsequential. Although there was failure on the part of the plaintiff to prove a clear case of trespass on the alleged date, it could not have been assumed that the suit is mala fide. Appellate Court thereupon came to a finding that a technical approach was attempted to be adopted by the lower court. Although there was failure on the part of the plaintiff to prove a clear case of trespass on the alleged date, it could not have been assumed that the suit is mala fide. Appellate Court thereupon came to a finding that a technical approach was attempted to be adopted by the lower court. There was also no nonjoinder necessitating dismissal of the suit, since a defendant had no right to compel the plaintiff to implead an additional party and advise him to seek a relief against him, when the plaintiff was reluctant to make him a party to the proceedings. Result was that the appeal was allowed and the suit had been decreed. 12. The learned counsel appearing for the appellants submits that the appellate judgment is wrong and erroneous. Precise matters to be considered at the time of adjudication have been overlooked. It was a case where the defendants were in possession and were also entitled to benefits of being treated as tenants and consequently entitled to the benefits, as might be available to them, under the Kerala Land Reforms Act. 13. The appellant had a further contention that the jenmom right in respect of the properties had been duly purchased in the year 1978, evidence by purchased certificate, totally had changed, and absolute ownership had been vested in them. The further submission was that an error had been committed by the lower authorities, in taking notice of the contentions pertaining to tenancy right. It was mandatory that the issue of tenancy should have been referred to the Land Tribunal for consideration, as required by section 125 of the Kerala Land Reforms Act. 14. Mr. Manhu, appearing for the appellants, further submitted that the reasoning for upsetting the judgment of the learned Munsiff was flimsy as there was no justification for holding that there was a permissive possession alone, or that it alone had got transformed to forcible possession. According to him, the expression as above in the appellate judgment disclosed in fact a pedestrian approach. 15. Sri. Sethu Madhavan, counsel appearing for the respondents, submitted that the legal contentious as urged above had no merit whatsoever. According to him, the benefit of the Land Reforms Act could not at all have been claimed by the appellants for obvious reasons. There was no duty upon the court to refer the matter to a Tribunal. 15. Sri. Sethu Madhavan, counsel appearing for the respondents, submitted that the legal contentious as urged above had no merit whatsoever. According to him, the benefit of the Land Reforms Act could not at all have been claimed by the appellants for obvious reasons. There was no duty upon the court to refer the matter to a Tribunal. As the suit related to the year 1966, on the authority of the decision reported as Eapen Chacko v. Provident Investment Co. (P) Ltd. [1977 KLT 1-SC], such a course could not have been insisted upon. It is further submitted that the Appellate Court had come to a correct conclusion, since it was a case where a person who might have been permitted to enter the properties and who thereby had only a limited right, never did in fact ripen at all to rights on immovable properties. Defendants had been asserting imaginary claims. The conduct had been or rightly characterized as an attempt for forcible possession. Therefore, justifiably the appellate court had corrected the error committed by the Munsiff. The appeal had no merits. 16. We may examine the rival contention with reference to the question of law, as have been formulated. It is agreed by the parties that question No.(a) is the principal question which is to be subjected to examination. Question No.(b), which refers to the necessity for reference under section 125 of the Kerala Land Reforms Act, perhaps is of no consequence., in view of Eapen Chacko’s case (cited supra). Questions (c) and (d) are subsidiary to question No.(a), and practically have no independent existence. 17. For the time being at least, we may proceed as if the facts presented by the appellant are true in its entirely. Principally according to Sri. Manhu, three components are there, which entitle the appellants to be recognized as having tenancy, and which consequently give them right for fixity of tenure. The first is that the scheduled properties were given to the predecessors in interest of the defendants for the purpose of fugitive cultivation. Secondly, they were authorized to take green manure from the properties, so given over to them, which were to be used in the agricultural lands belonging to the landlord, separately given over to them on less arrangements. The first is that the scheduled properties were given to the predecessors in interest of the defendants for the purpose of fugitive cultivation. Secondly, they were authorized to take green manure from the properties, so given over to them, which were to be used in the agricultural lands belonging to the landlord, separately given over to them on less arrangements. Thirdly, revenue receipts and puncha chits were being issued in favour of the defendants, and these evidence remittance of the such payments to the Government legally to be recognized as made on behalf of the landlord. This coupled with the earlier circumstances were to be considered as entrustment, which had all the trappings of a tenancy. Apart from the above, it had also been urged that the possession was uninterrupted, and was in existence for decades. These constituted unimpeachable circumstances, which completely overshadowed the claims of the landlord on the basis of title. The trump-cards so placed could be examined vis-a-vis the claims highlighted by the landlord. 18. It has to be presumed that the defendants were aware of the circumstance that unless the claims of tenancy were recognized there was always an element of risk. Possession alone might not have been sufficient enough for them to continue to hold on the properties. This was because the definite claim of the landlord was that a leave alone had been given for attending to sporadic cultivation of crops and in fact a permission enabling the defendants to collect green manure seasonally for the purpose of agriculture was no right sufficient to eclipse the superior factor of ownership. This would have at best been equated as a case of permissible possession and in legal terms there was no scope for coming to a conclusion that the possession of the landlord factually or irrevocably had been lost. 19. On the advent of the Kerala Land Reforms Act, the existing scenario in respect of holdings on tenancy arrangements had completely changed. The enactment had brought in the concept of principle of fixity of tenure which ultimately blossomed to the right for purchase of even the landlord’s right. Therefore, I fell that the primary and only question to be looked into is as to whether it would have been possible for the defendants in the suit to content or not. If they succeeded in the attempt, the suit was liable to be dismissed. 20. Therefore, I fell that the primary and only question to be looked into is as to whether it would have been possible for the defendants in the suit to content or not. If they succeeded in the attempt, the suit was liable to be dismissed. 20. We may straight away go to the definition of “tenant” under section 2(57) of the Kerala Land Reforms Act. It reads as following: “2(57), Tenant means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease that land, and includes—-- (a) the heir, assignee or legal representative of, or any person deriving right through any such person who has paid or has agreed to pay rent or other consideration; (aa) an intermediary, (b) a Kanamdar, (c) a Kanam-kuzhikanamber (d) a kushikanamdar, (dd) an ottikuzhikanamdar (e) mulgenidar, (f) a verumpattamdar of any description (indluding a customary verumpattamdar), (g) the holder of a chalgeni lease, (h) the holder of a kudiyiruppu, (hh) a person holding lands under a kuzhichuvaipum kudiyiruppum, (hhh) the holder of a karaima, (i) the holder of a vaidageni lease, and (j) a person who is deemed to be a tenant under section 4, section 4A. section 5, section 6, section 6A, section 7, section 7A, section7B, section 7C, section 7D, section 8, Section 9 or section 10, or presumed to be a tenant under section 11. Explanation: for the purposes of this clause,- (i) “holder of a chalgeni lease” means a lessee or sub-lessee of specific immovable property situate in the taluk of Hosdurg or Kasaragod in the district of Cannanore, who has contracted either expressly or impliedly to hold the same under a lease, whether for a specified period or not; (ii) “mulgeni” means a tenancy in perpetuity at a fixed invariable rent created in favour of a person called mulgenidar; (iii) “vaidageni lease” means a lease for a term of years.” 21. Such a tenant, under section 17 of the Act, is entitled to have fixity of tenure notwithstanding anything contained to the contrary in any law, custom usage or contract. Such a tenant, under section 17 of the Act, is entitled to have fixity of tenure notwithstanding anything contained to the contrary in any law, custom usage or contract. The thrust of the above section appears to be that relationship as between a landlord and tenant can emerge substantially only in a case where the holder of the land is obliged to pay rent or other consideration for his being allowed to possess and enjoy the land. A tenancy cannot be envisaged without an element of payment of rent, in one form or another. Mr. Sethumadhavan submits that the issue requires to be considered in this background. According to him, the appellants herein have no case that they do come within the inclusive part of the definition, namely sub-section (a) to (i) Section 2(j) refer to the existence of deemed tenancy, but an examination of the pleadings do not indicate that the relationship as claimed between the parties is sufficient for a court to uphold the possible claim of the defendants that are to be recognized as deemed tenants as well. 22. Of course, section 10(ii) refers to a licensee as a deemed tenant. But, this is not sufficient enough to get round the basic requirement. This is because even to invite such a presumptive provision, it is necessary that there should be payment or at least agreement to pay rent or other consideration for occupation of the properties. It is in the above background, that the pleadings and evidence let in by the parties are to be subjected to scrutiny for the Court to come to a conclusion whether the alleged tenancy or deemed tenancy. 23. There is no plea or claim anywhere made by the defendants that there was payment of rent to the plaintiffs at any time, or there was an agreement to pay rent so as to have a landlord and tenant relationship, as coming within the purview of the Land Reforms Act. It is of relevance to note that under section 105 of the Transfer of property Act as well, such payment to the transferor alone in law creates a lease arrangement. Of course, the section in Land Reforms Act is widely worded that it need not be rent, but could also be other consideration, for his being allowed to possess and enjoy the land. Of course, the section in Land Reforms Act is widely worded that it need not be rent, but could also be other consideration, for his being allowed to possess and enjoy the land. But even so, it do take in payment requirement by way of consideration payable to the landlord as an essential ingredient. 24. Rent is defined under section 2(49) of the Act as “whatever is lawfully payable in money or in kind or in both by a person permitted to have the use and occupation of any land to the person so permitting, and includes michavaram, but does not include customary dues”. The stipulation as above pertaining to the element of rent mutatis mutandis have to apply with reference to the arrangement of payment of “other consideration” referred to in rule 2(57). It could be gatherable that it was not unusual to stipulate for payment of rent, by measures of paddy, but other commodities, e.g. (edible) oil. One of the documents produced before the Court being a judgment in an earlier suit, in a different context refers to stipulation for payment of ‘oil’ as ‘rent’, which may thus constitute ‘consideration’. There is no plea that any such rent or consideration, as coming within the definition of rent were ever paid for the use and occupation of the land to the person, who owned the properties indisputably. In fact, DW1, in cross examination, had conceded that there was no system of payment of rent in respect of the scheduled items. 25. Mr. Manhu refers to the circumstance of payment of revenue to the Government, and heavily relied on the Puncha chits and revenue receipts. These evidenced that revenue payments were being made by the defendants almost on all occasions, and according to him, this has to be considered as payments made on behalf of the landlord, of course to the Government, so as to discharge his statutory obligation in respect of taxes. True it has been possible for the defendants to produce and rely on revenue receipts, but it is difficult to accept the contention urged by the learned counsel that such payments are to be considered as payment of rent, even if it had been paid over to the Government of behalf of the landlord. The chits ex facie indicate that they are not receipts, although issued under the authority of the Tahsildar. The chits ex facie indicate that they are not receipts, although issued under the authority of the Tahsildar. They were memos issued to the ‘tenant’, directing remittance of the fee within 30 days, and also contained a stipulation on its face that, if not complied with the Government will enter into the crops and recover the fee from the cultivated crops. As referred to earlier, DW1, at the time of cross-examination, admitted also in candid terms that there was no practice of paying rent. Expressions in the statute are to be understood as they appear, and the definition clauses are to be considered almost always as guidelines, A departure us permissible only at instance where the subject or context compulsorily requires the would or expression to be understood in a different manner. If so viewed, payment of taxes to the Government or incidence of issue of Puncha chits and payments thereon, although in effect truly discharges the obligation of the landlord, such remittances cannot be treated as payment of rent or payment of consideration. They were not payments made to the landlord periodically. The counsel submits that at earlier times a system was in vogue that in respect of unproductive lands, landlord entrusted them to person, only on condition that they pay the taxes due, and the entrustment as above had all the incidence of a lease. Perhaps it may be true. But the conduct itself would have been indicative of the anxiety of the landlord to retain ownership, and simultaneously ensuring that default did not ultimately made him liable for taxes, and thereby ruin. 26. Therefore, in the essential characteristics, we cannot find that the defendants had relationship with the plaintiffs, as a tenant to the landlord. It was short by one primary ingredient, viz., stipulation regarding rent. An occupation might have been there as permissive and there might not have been any indication that it was considered as objectionable or one which defied the right of the landlord. 27. At this juncture, we have to see that in the matter of possession also the evidence was not clear. PW4 Kunju Nayar, an independent witness, had stated in unambiguous terms that the plaintiff’s workers were always collecting usufructs, viz., cashew nuts from the property. DW1 had submitted that the area was fully occupied by cashew trees, although he too claimed possession from time immemorial. PW4 Kunju Nayar, an independent witness, had stated in unambiguous terms that the plaintiff’s workers were always collecting usufructs, viz., cashew nuts from the property. DW1 had submitted that the area was fully occupied by cashew trees, although he too claimed possession from time immemorial. Title always was vesting with the landlord and the occupation of defendants therefore could have been considered as an occupation permitted. The tenant was having the authority for securing green manure. The circumstance that green manure was being used for cultivation especially in respect of land. Which had been leased out to the tenant, by the very same landlord, but by written lease deeds, also did not alter the picture to any appreciable extent. There was no evidence to indicate that the payment of rent in respect of such other parcels of land in the possession of the defendants/tenants in any way depended upon the amount of green manure obtained from the holdings. The two were separate and independent transactions totally unconnected with one another. Therefore, the payment of taxes or right to collect green manure did not ipso facto confer on the defendants any rights, which could be equated to tenancy. 28. We will presently go to the next contention about the claim raised on fugitive cultivation. Fugitive cultivation is an expression to denote raising of crops, where the land concerned is generally unfit for regular cultivation of paddy. Crops including cashcrops, cerals etc., are raised in fileds which have no sufficient facility for getting irrigated. It is mostly confined to moderate and fair seasons. Here also there was nothing to indicate about the arrangement for payment of any rent by way of return for such yields taken. There was no requirement for regular and yearly cultivation. In a case where there was no such rental arrangement, it is difficult for the defendants to contend that nevertheless they were to be recognized as tenants. 29. Under section 12 of the Kerala Land Reforms Act, opportunity is given to the tenants who is a person interested in any land, to prove that a transition purporting to be a mortgage, otti karipanayam, nerpanayam or licence of that land is in substance a transaction by way of kanam, kanam-kuzhikanam, kuzhikanam, verumpattam or other lease and that the transferee is entitled to fixity of tenure. Here also the basic requirement is that there should be a payment of rent or consideration and understandably as prescribed by the provisions of the Act. The appellants had not been able to establish that such a circumstances existed for recognizing the right of tenancy. 30. Thus the examination of the materials brought in indicates that the defendants had failed in the crucial areas and there was hardly any evidence for the court to come to a conclusive finding that it was a case of tenancy and the provisions of the Kerala Land Reforms Act would have come to their rescue. A feeble contention of course had been raised about the acquisition of jenmom rights during 1979. But the law on that point has been clarified in Parameswaran Thampi v. Podiyan Thomas [1984 KLT 397]. The Land Tribunal are bound by the principles of lis pendent. When the question of tenancy itself is pending before the Civil Court, a party will get no substantive right by bypassing the procedure. Such attempts are deprecated. Therefore, it is to be held that receipt of jenmom right by purchase, though ordered by the Land Tribunal, is of no consequence. 31. In the facts and circumstances of the case, I find hardly any reason to interfere with the judgment of the lower appellate court. The Second Appeal will stand dismissed.