JUDGMENT : AMIT RAWAL, J. Petitioner – plaintiff instituted a civil suit W.O.S. No.184 of 2019, by laying challenge to the order of the Administrator of the Kerala State Waqf Board dated 11.07.2014, ordering the eviction from the schedule property measuring 44 cents of land and for the injunction not to evict the petitioner owing to the facts pleaded in the plaint. 2. It was averred that the schedule property originally belonged to Kakkad Juma-ath Palli, Kannur, which was given on lease to many tenants and thereafter, leased out to Kakkad Oil Mills and Industries vide registered document bearing No.474/1947 of S.R.O., Kannur. In lieu thereof an amount of Rs.500/- was received as premium and annual land rent was fixed as Rs.36/-. The said industry went under liquidation and on 16.01.1960, the plaint schedule property including the building and structure thereon was put to public auction. 3. The plaintiff's father acquired the rights in the aforementioned property by lease assignment deed No.550 of 1960, whereby the tenancy rights of the entire building and the structure erected by the said Kakkad Oil Mills, was conferred, for a paltry amount of Rs.3,250/-. 4. On the basis of the complaint made by the 5 th respondent that the status of the petitioner-plainti encroacher, the CEO put up a note on 11.07.2014 before the Administrator and the Administrator passed ejectment order dated 11.07.2014, a one line order, without affording any opportunity to the petitioners/plaintiffs. The order was though assailed before the appellate Tribunal, but of no avail. In that background, the declaration as aforesaid has been sought. In the plaint, the benefit of Section 106 of the Kerala Land Reforms Act, 1963 was also set up. Besides that, the eviction proceedings was also assailed on the ground that, in the earlier round of litigation by the Wakf in original suit No.26/1965, the claim for eviction was rejected by decision dated 13.11.1961, with the direction to the plaintiff to continue to pay the rent. 5. Respondent - Wakf contested the suit on various grounds and stated that, the status of the petitioner/plaintiff as per the provision of Section 3(ee) of the Wakf Act had become of an encroacher and even by virtue of the purchase document or the status continued to be a tenant and not that of an owner. 5. Respondent - Wakf contested the suit on various grounds and stated that, the status of the petitioner/plaintiff as per the provision of Section 3(ee) of the Wakf Act had become of an encroacher and even by virtue of the purchase document or the status continued to be a tenant and not that of an owner. The previous suit basically was decreed commanding the petitioner – plaintiff to pay the arrears of rent. The ownership of the property throughout always vested with the Wakf. Based upon the afore-mentioned pleadings, the learned Tribunal framed following issues cum additional issues: “Issues 1) Whether the order passed by the administrator of the Waqf Board dated 11.7.2014 is null and void? 2) Whether the plaintiffs are entitled for the benefit under Section 106 of the Kerala Land Reforms Act? 3) Whether the plaintiffs are entitled for a declaration as prayed for? 4) Whether the plaintiffs are entitled for an injunction as prayed for? 5) What is the order as to reliefs and costs? Additional issues 6) Whether the suit is maintainable for want of Section 80 notice? 7) Whether the suit is maintainable against the impugned order of the Waqf Board? 8) Whether the suit is barred by resjudicata, estoppels and waiver? 9) Whether Ext.A4 lease deed is valid or legal?” 6. The Plaintiff examined three witnesses and brought on record following documents whereas the defendants did not examine any witness and brought on record the following documents: “ Plaintiff Exhibits: ID Date Description A1 11.07.2014 Copy of decision of Kerala State Waqf Board. A2 11.07.2014 Certified copy of the proceedings of Administrator Kerala State Waqf Board. A3 26.03.1960 Assignment deed entered into between Chathukutty Nair, Abdul Khader and Moosakutty. A4 24.02.1947 Certified copy of deed bearing document No 474/1947. A5 30.11.1961 Certified copy of decree in OS 26/1961 of Munsiff Court, Kannur. A6 30.11.1961 Certified copy of Judgment in OS 26/1961 of Munsiff Court, Kannur. A7 -------- Receipt given by Kakkad Juma-ath Committee to Moosakutty. A8 12.01.1965 Certified copy of extract of Register of Waqf. A9 09.12.2014 Copy of lawyer notice with postal receipt and acknowledgement card. A10 08.12.2014 Copy of lawyer notice with postal receipt. A11 18.12.2014 Letter issued from Divisional Office Kerala State Waqf Board Kozhikode to Divisional Office Kannur. A12 05.02.2018 Building Tax receipt. A13 20.02.2016 Building Tax receipt. A14 20.02.2016 Building Tax receipt. A9 09.12.2014 Copy of lawyer notice with postal receipt and acknowledgement card. A10 08.12.2014 Copy of lawyer notice with postal receipt. A11 18.12.2014 Letter issued from Divisional Office Kerala State Waqf Board Kozhikode to Divisional Office Kannur. A12 05.02.2018 Building Tax receipt. A13 20.02.2016 Building Tax receipt. A14 20.02.2016 Building Tax receipt. A15 20.02.2014 Copy of order of appointment of administer of Kerala State Waqf Board by Revenue Department. A16 14.06.2016 Certified copy of order in Appeal suit 1/15 of Wakf Tribunal, Kozhikode. A17 14.02.2018 Reply given to Ismail by public information officer, Village Office, Puzhathi as per RTI Act. A17(a) 5.02.2018 Application filed by K.T. Ismail under RTI Act. A18 19.09.1966 Receipt issued by Kakkad Muslim Juma-ath Committee to Moosakutty. A19 18.05.2010 Certified copy of deed bearing document No.1813/10. A20 29.10.2013 Certified copy of deed bearing document No.3429/13. A21 3.12.2002 Copy of notice issued by CEO Kerala State Waqf Board to President Kakkad Mahal. A21(a) 7.01.2003 Copy of notice issued by CEO Kerala State Waqf Board to Senior superintendent Kerala State Waqf Board. A21(b) 22.11.2012 Draft notes in El 2595/09 issued by state Public Information Officer. A210 16.06.2000 Copy of petition filed by residences of Kakkad Mahal to Secretary Kerala State Waqf Board. A21(d) 24.06.2000 Copy of memo issued by Senior Superintendent Kerala State Waqf Board. A21(e) 1.07.2000 Copy of emergent notice issued by CEO Kerala State Waqf Board. A21(f) 14.07.2000 Copy of report filed by Head Clerk Kerala State Waqf Board. A21(g) 15.07.2000 Copy of reply notice sent by Adv. Ahammed Kunhi to Senior Superintendent Kerala State Waqf Board. A22 04.04.2015 Certified copy of request from President Kakkad Mahal Muslim Jamaath, to Chairman Waqf board. Defendants Exhibits: ID Date Description B1 31.03.2015 Certified copy of plaint in appeal suit 1/2015 filed before Wakf Tribunal, Kozhikode. B2 04.06.2016 Certified copy of judgment in appeal suit 1/2015 of Wakf Tribunal Kozhikode. B3 15.11.2005 Certified copy of partition agreement bearing document No. 3920/05. B4 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(a) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(b) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(c) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(d) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(e) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(f) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(a) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(b) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(c) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(d) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(e) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(f) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(g) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(h) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(i) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(j) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(k) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(1) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(m) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B4(n) 28.02.2018 Extract of Adangal issued by Village Officer Puzhathi. B5 26.02.2018 True copy of sketch issued by Village Officer Puzhathi. B6 14.06.2016 Certified copy of decree in appeal suit 1/2015 of Waqf Tribunal, Kozhikode. Witness Exhibits: Page No. File No. Organization 89 E4-2595/09 Kerala State Waqf Board 7. On analysis of the aforementioned documents, learned Tribunal dismissed the suit by holding that, it was not a commercial lease, therefore, plaintiff could not take up the plea of Section 106 of Kerala Reforms Act, 1963. Moreover, Ext.A3 the purchase certificate dated 26.03.1960 would not grant any benefit right as an assignee as no industrial or commercial activities was ever carried on as on 20.05.1967 owing to the admission of PW1 as the premises were being used for the residential purposes. 8. Mr.P.B.Subramanyan, the learned counsel appearing on behalf of the petitioners submitted that the judgment of the Tribunal is not sustainable and liable to be set aside on various grounds by making following submissions: (i) By the registered document dated 26.03.1960, no doubt the tenancy rights were conferred with no right to seek eviction as the plaintiff is entitled to protection as enshrined under Section 106 of the Kerala Land Reforms Act, 1963 for, usually the lease was given to an Oil Mill which was commercial and even after the auction it remained commercial. Even if the nature of the business had stopped, the tenor and the colour of the lease would always be of commercial. This aspect has totally been brushed aside while dismissing the suit. Even if the nature of the business had stopped, the tenor and the colour of the lease would always be of commercial. This aspect has totally been brushed aside while dismissing the suit. (ii) The petitioner had always been paying the rent even by virtue of the document Ext.A3 dated 26.03.1960, no doubt the fresh cause of action would always arise in favour of the Wakf Board as and when there is a default in payment of lease money, but subject to clearance of arrears, the eviction cannot be ordered as the status of the petitioner cannot be equated with the definition of encroacher as defined under Section 3(ee) of the Wakf Act, 1995. (iii) There has been a misdirection and misinterpretation of the document as Tribunal failed to advert to the terms and conditions of the document Ext.A3 dated 26.03.1990, which is a registered document conferring the perpetual commercial lease in favour of the petitioner/plaintiff. (iv) The previous suit had also protected the interest and possession subject to the payment of the arrears. The petitioners/plaintiffs had always been paying the arrears, but the respondent did not accept the same. Non acceptance of the same would not give them the power to initiate action under Section 54 of the Wakf Act, 1995. 9. Per contra, the learned senior counsel Sri.T.Krishnanunni as well as Sri.Jamsheed Hafiz – learned Standing Counsel for the Wakf Board, jointly opposed the afore mentioned submission and submitted that the status of the petitioners/plaintiffs would be of an encroacher on account of the non-payment of the lease money. The previous decree was conditional as it contained the directions to pay the arrears. It is settled law that a tenant, even if he had stepped into the shoes of erstwhile tenant by virtue of the document dated 26.03.1960, cannot acquire and retain the property without payment of the lease money. In default, the remedy is to seek eviction and precisely that is what has been done in accordance with law. Order of the tribunal is based upon the appreciation of oral and documentary evidence and does not require any interference while exercising power of revision which is only confined to material irregularity and perversity. 10. We have heard counsel for the parties and appraised the arguments as well as the provisions of the Act and copy of the document dated 26.03.1960. 11. 10. We have heard counsel for the parties and appraised the arguments as well as the provisions of the Act and copy of the document dated 26.03.1960. 11. On plain perusal of the provisions of the document Ext.A3 dated 26.03.1960, it is evident that on payment of certain consideration i.e. Rs.3,250/-, the father of the petitioners/plaintiffs had stepped into the shoes of the erstwhile lessee, who had taken the premises on the commercial lease way back in 1947. Aforementioned possession came into being by virtue of the property having been put to auction as the erstwhile company had gone under liquidation. 12. On perusal of the order of the Tribunal, it is evident that none of the terms and conditions of the document Ext.A3 dated 26.03.1960 has been adverted to, in order to understand the import of the provisions of Section 106. Using of the premises for residential purpose would not change the character and nature of the property which was leased out to the erstwhile tenant and on subsequent acquisition of the tenancy rights by a registered document dated 26.03.1960. 13. Section 106 of the Kerala Land Reforms Act reads as under: “106. Special provisions relating to leases for commercial or industrial hurposes.- (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or order or decree of court, where, on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 18th December, 1957, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy. Such rent shall be liable to be varied every twelve years on the motion of the lessor or the lessee, in such manner as may be prescribed. Such rent shall be liable to be varied every twelve years on the motion of the lessor or the lessee, in such manner as may be prescribed. (2) If, between the 18th December, 1957 and the date of cons-mencement of this Act, any decree or order of court has been executed and any person dispossessed by delivery, such person shall, on applica-tion before the land Tribunal, be entitled to restoration of possession: Provided that, before restoration, such person shall be liable to pay - (i) the compensation paid by the landlord for any improvements in the land and subsisting at the time of restoration; (ii) the compensation for any improvements effected subsequent to the delivery: Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bona fide transferee for value.” 14. Had the contents of the document dated 26.03.1960 been looked into, perhaps the Tribunal would have been able to appreciate the applicability or otherwise of the provisions emphatically relied and extracted supra. 15. All these factors have not been taken into consideration, therefore the findings of the Tribunal are not only arbitrary but opaque and hereby set aside. The Revision Petition is allowed. 16. Before we could remand the matter to the Tribunal for fresh adjudication in terms of our observation as well as the examination of the documents, we put to the parties to bring a quietus to the litigation whether the plaintiffs/petitioners are willing to increase the lease money and pay to the Juma-ath/Wakf. Both the parties after having obtained the instructions from their respective clients have agreed to do so. Mr.Subramanyan, informs that though the area of the land is 4000 sq feet but the constructed portion is far less in square feet. Mr.Jamsheed Hafiz informs that the market rent of the constructed portion is between Rs.40/- to Rs.50/- per square feet. We take it as Rs.40/-, being an old occupant, therefore fix the rate of rent of the constructed area in possession of the petitioner as Rs.40/- to be determined from today and direct to clear the arrears at the old rent within a period of one month and continue to pay thereafter without any default. 17. We take it as Rs.40/-, being an old occupant, therefore fix the rate of rent of the constructed area in possession of the petitioner as Rs.40/- to be determined from today and direct to clear the arrears at the old rent within a period of one month and continue to pay thereafter without any default. 17. The petitioner is also at liberty to have amicable settlement with the respondents to either retain at a different rate of rent or surrender the unconstructed and unoccupied area in favour of the Juma-ath subject to any terms and conditions.