Judgment 1. Heard the learned counsel on both sides. 2. The plea raised before the High Court in second appeal was that the appellant before us (the first defendant in the suit) was a "deemed tenant" within the meaning of Section 7 of the Kerala Land Reforms Act, 1963 (for short "the Act"). The High Court rejected this contention by the following observations: a "It is admitted that what is pleaded in the written statement is that he was in continuous occupation and was a tenant and because of such occupation he did have adverse possession and, therefore, the plaintiff did not have right to seek partition. That will not come within Section 7. For the purpose of Section 7, the minimum factual foundation necessary was that he continued, whatever be the rights of the plaintiff, to occupy b the land believing himself to be a tenant. When that factual foundation is not there, in the pleadings, there arises no question of answering this mixed question of law and fact, in favour of the appellant." 3. A reference to the judgment of the trial court shows that the suit was initially instituted by the original plaintiffs as a suit for injunction in which interim injunction had been sought. The relief of interim injunction was C rejected by the trial court holding that the plaintiffs were not shown to have been in possession of the suit property. Thereafter, the plaint was amended and the suit was converted into one on title. The first defendant, who is the appellant before us, filed an additional written statement taking a plea of adverse possession. Obviously, the question as to whether Defendant 1 was in possession of the suit property, whether adversely to the plaintiffs' right or d otherwise, ought to have been decided in the trial. Unfortunately, we notice that the trial court merely relied on the findings returned by the Land Tribunal on the issue of tenancy, which too happened to come into existence because of the failure of the plaintiffs to attend to the proceedings before the Land Tribunal. Basing its decision on it, the trial court did not go into the question whether Defendant 1 was in possession of the suit property. The first e appellate court held against the plaintiffs and dismissed the suit. Basing its decision on it, the trial court did not go into the question whether Defendant 1 was in possession of the suit property. The first e appellate court held against the plaintiffs and dismissed the suit. Even the first appellate court, which reversed the judgment of the trial court, did not go into the question of possession. When the issue was raised before the High Court in second appeal, the High Court dismissed the second appeal by the aforesaid observations to which we have referred. 4. The observations of the High Court make it clear that the case of the f first defendant always was that he had possession of the suit property-albeit that it was adverse to the title of the plaintiffs. So, the first issue to be tried and answered was whether the first defendant was in possession of the suit property. If the first defendant was in possession of the suit property, then the Explanation to Section 7 of the Act would come to his rescue. Unfortunately, none of the courts below seem to have addressed itself to the issue of possession of the suit property by Defendant 1. In the result, the disposition of the case by the High Court in the second appeal has become unsatisfactory. 5. We think it necessary that the issue of possession ought to be determined on the basis of the pleadings and evidence before the trial court and a finding returned thereupon. Consequently, we set aside the judgments of the High Court, the first appellate court and the trial court and remand Original Suit No. 12 of 1975 to the Munsif Court, Taliparamba for deciding the suit afresh after raising an additional issue as to possession of the suit property by Defendant 1 on the basis of the pleadings and thereafter deciding the question as to whether Defendant 1 could be said to be a "deemed tenant" within the meaning of Section 7 of the Act. This issue will be decided in addition to other issues which might arise on the pleadings of the parties. We have not foreclosed any of the contentions of the plaintiffs in the suit, which shall, of course, be answered in accordance with the pleadings and evidence on record. 6. The appeal is allowed accordingly. 7. This issue will be decided in addition to other issues which might arise on the pleadings of the parties. We have not foreclosed any of the contentions of the plaintiffs in the suit, which shall, of course, be answered in accordance with the pleadings and evidence on record. 6. The appeal is allowed accordingly. 7. However, we find that the difficulty in the case has arisen only because of the failure of the appellant to take up the point in good time. Hence, we think that though the appellant is to be given an opportunity of raising the issue, costs should be imposed on the appellant in the sum of Rs 5000.