JUDGMENT : EASWARAN S., J. 1. Two suits and one counter claim were tried jointly, which resulted in a decree against the appellants. O.S. Nos. 90 of 2009 and 118 of 2011 were filed by the Sree Velliyamattom Bhagavathy Deity, represented by the Velliyamattom Bhagavathy Devaswom Trust and its Trustees claiming recovery of possession in respect of ‘A’ and ‘B’ schedule properties in O.S No. 90 of 2009, and also a consequential prohibitory injunction restraining the defendants from alienating the properties scheduled in the plaint in O.S No. 118 of 2011. ‘A’ schedule property comprises 566.67 acres, which is the subject matter of a lease of the year 1906 (Deed No. 1206/1081 Malayalam Era). ‘B’ schedule to the plaint consists of 2.5 acres of land in Re.Survey No.149/4 (Old Survey No.944/1A, 946/1) of Valliyamattom Village. According to the plaintiff, the land originally belongs to a temple called Chuzhalikkattu Bhagavathy within ‘A’ Schedule property covered by the lease deed dated 17.04.1907. The 566.67 acres comprising ‘A’ schedule property was originally in the hands of the plaintiff temple. It is alleged that the defendants have destroyed the entire temple in the ‘B’ schedule property and planted the areas with rubber. According to the plaintiff, the original lease was in favour of one R.D Fenton, assignment deed in favour of Gompartz and K.G.Windle on 31.10.1907. Later, on 16.10.1909, the property was assigned in favour of the Thodupuzha Rubber Company which later went into liquidation. The company winding up by way of liquidation entered into a deed of indenture dated 28.03.1934, assigning the property to Velliyamattom Rubber Company. In the meanwhile, O.S. No.2 of 1103 M.E. was pending before the Paravur District Court questioning the execution of Ext.A1 lease by the Trustee Godan Sankaran Namboothiripad. On 07.11.1112 M.E. the suit was compromised. According to the plaintiff, the lease expired also on 17.04.2005, and the defendants are remaining as tenants at sufferance, and they have not sought for consent of the lessors continuing. Hence, the plaintiff contended that the defendants have no right to continue in the property. The suit was thus filed in the representative capacity of the plaintiff as well as the defendants as the suit consisted of numerous persons including trustees and various land owners. Hence, the plaintiff contended that the defendants have no right to continue in the property. The suit was thus filed in the representative capacity of the plaintiff as well as the defendants as the suit consisted of numerous persons including trustees and various land owners. The defendants resisted the suit contending that by successive assignment, the 1 st defendant acquired his own right by virtue of deed of indenture dated 12.04.1946, and subsequent arrangement of lease, the right devolved upon defendants 2 to 6 and 8 to 11 and presently only defendants 3, 5 and 10 are in possession of the portion of the plaint schedule properties. The compromise in O.S. No.2 of 1103 M.E. before the Paravur District Court recognized the right of the predecessor of the defendants for fixity of tenure, and has further contended that no temple exists as alleged by the plaintiff, Trust. 2. Pending the suit, the claim of fixity of tenure was referred to the Land Tribunal, Thodupuzha under Section 125 (3) of the Kerala Land Reforms Act 1963, and by order dated 07.03.2018, the reference was answered in favour of the defendants. Accordingly, the reference was returned. Based on the answer given by the land tribunal on 07.03.2018, the trial court concluded that the claim for recovery of possession for ‘A’ schedule property cannot be sustained. As regards the ‘B’ schedule property, the trial court found that inasmuch as the plaintiff was not able to prove the identity of the ‘B’ schedule property, would prove the fact that the defendants were in possession of ‘B’ schedule property, the relief for recovery was thus declined. The contesting defendants also lodged a counter claim to declare a sale deed No.1395 of 2003 dated 11.08.2003 executed by the plaintiffs transferring 33 acres of land covered by Ext.A1 document. The counter claim was answered in favour of the defendants by holding that after execution of Ext.A1, and also after coming into force of the Land Reforms Act on 01.04.1964, the landlord has lost the rights over the property. Therefore, cannot convey the title over the property in favour of the temple. Accordingly, the sale deed dated 11.08.2003 was set aside and the counter claim was allowed. Aggrieved three appeals were preferred by the plaintiff, who against the judgment and decree in O.S. Nos.118 of 2011 and 90 of 2009 and another appeal against the counter claim. Therefore, cannot convey the title over the property in favour of the temple. Accordingly, the sale deed dated 11.08.2003 was set aside and the counter claim was allowed. Aggrieved three appeals were preferred by the plaintiff, who against the judgment and decree in O.S. Nos.118 of 2011 and 90 of 2009 and another appeal against the counter claim. All three appeals were considered together and by judgment dated 12.06.2019, the 1 st appellate court concurred with the findings of the trial court and found that since the plaintiff has not established the identity of the ‘B’ schedule property and that no documentary evidence was produced to prove the title of the ‘B’ schedule property, the appeals were dismissed, and hence, the present second appeal. 3. On 27.10.2021, this Court framed the following substantial question of law in R.S.A. Nos.284 and 256 of 2020:- (1) Did not the first appellate court commit a serious error in upholding the finding of the Land Tribunal that the 1 st defendant and the successors-in-interest have obtained fixity of tenure of their leasehold right over the plaint schedule property by virtue of Ext. A1 lease deed? (2) Should not the courts below and the Land Tribunal have come to a conclusion that going by the terms of Ext.A1, it was for the betterment and improvement of the land for the benefit of the lessor and their family with a view to yield a higher steady income, the lease had been created and not for the predominant benefit of the lessee alone and distinguished the decision of this Court in 1972 KLT 613 and of the Apex Court in AIR 2015 SC 2556 on the basis of the different set of facts in the instant case? (3) Did not the courts below commit a serious error in dismissing both OS Nos. 90/2009 and 118/2011 ? (4) Should not the courts below have granted a decree in respect of B schedule property, which had been found to be not part of the Lease Deed holding by the Land Tribunal ? (3) Did not the courts below commit a serious error in dismissing both OS Nos. 90/2009 and 118/2011 ? (4) Should not the courts below have granted a decree in respect of B schedule property, which had been found to be not part of the Lease Deed holding by the Land Tribunal ? Apart from the above questions of law an additional question of law was also framed in R.S.A No.187 of 2020, which is as follows:- (5) Did not the court below commit a serious error in allowing the counter claim by canceling Ext.A7/B4 No.1395/2003 of SRO, Thodupuzha, when the rights have been properly conveyed by the title holders ? 4. Heard Sri.P.R.Venkatesh learned Counsel appearing for the appellants, Sri.Joseph Markos, the learned Senior Counsel appearing for the respondents 1 to 6 and 11 in R.S.A No. 256 of 2020 (Respondents 1 to 5 in R.S.A. Nos. 187 and 284 of 2020), Sri.Mathew John, learned Counsel appearing for respondents 24 to 27 in R.S.A. No. 256 of 2020 and Sri.T.J.Michael, learned Counsel appearing for respondents 28, 30, 32 and 33 in R.S.A. No.256 of 2020, and Sri.Unikrishnan V Alapatt, the learned Counsel appearing for respondents 14 and 22 in R.S.A. No. 256 of 2020. 5. Sri.P.R.Venkatesh, learned Counsel appearing for the appellants largely canvass for the proposition that once the suit O.S. No.2 of 1103 M.E. was compromised, the original lease Ext.A1 merged into the compromise decree. By the time, the compromise was entered between the parties, the land in question was already converted into a plantation and therefore, the lease that was granted by virtue of the compromise is a lease for plantation thus exempted under the provisions of the Kerala Land Reforms Act . He further pointed out that even with a lease of the plantation, only 30 acres can be retained by the lessee. He further pointed out that the terms of the compromise are evident from the deed of indenture dated 12.04.1946, which clearly depicts that there is a change in the terms and conditions of the lease. That apart, it is further pointed out that when the land tribunal returned the reference of answering in favour of the defendants, he did not affirm the right of the defendants over ‘B’ schedule property and therefore, the courts below could not have dismissed the prayer for the recovery of possession of the plaint ‘B’ schedule property. That apart, it is further pointed out that when the land tribunal returned the reference of answering in favour of the defendants, he did not affirm the right of the defendants over ‘B’ schedule property and therefore, the courts below could not have dismissed the prayer for the recovery of possession of the plaint ‘B’ schedule property. 6. Per contra, Sri.Joseph Markos, the learned Senior Counsel appearing for the respondent Nos.1 to 6 and 11 in R.S.A. No. 256 of 2020 pointed out that once the land tribunal has answered the reference in their favour, nothing more survives in the suit to be considered. Countering the submissions of Sri.P.R.Venkatesh learned Senior Counsel for the appellants pointed out that the perusal of Ext.A2 deed of indenture will clarify that the lease of 1906 is affirmed and acknowledged by the lessors, and therefore, it cannot be said that a fresh lease is created either by virtue of the deed of compromise entered in O.S. No.2 of 1103 M.E. or for that purpose, the deed of indenture. According to the learned Counsel, the point of law is squarely covered by the decision of the Full Bench of this Court in Rt. Rev. Dr. Jerome Fernandez v. Be-Be-Rubber Estate Limited, 1972 KLT 613 and also the decision of the Supreme Court in N.K. Rajendra Mohan v. Thirvamadi Rubber Company Ltd. (2015) 9 SCC 326 : AIR 2015 SC 2556 . The learned Counsel appearing for the contesting respondents supported the submissions of the learned Senior Counsel. 7. I have considered the rival submissions raised across the bar and perused the judgment rendered by the courts below and also the case records. 8. The answers to the questions of law framed must be given in two parts. Questions 1 and 2 pertain to the entitlement of the defendants to hold the property under Ext.A1 lease. The Land Tribunal has answered the reference under 125(3) of the Kerala Land Reforms Act in favor of the defendants by holding that the defendants are entitled for fixity of tenure under Sec. 13(1) in respect of 566.67 acres of land covered by Ext.A1, included as ‘A’ schedule to the plaint. The Trial Court was thus bound to accept the reference. The Trial Court was thus bound to accept the reference. Though, on appeal the appellants tried to canvas for the preposition that the findings of the Land Tribunal are perverse in as much as there was no existing lease, this Court is not in a position to affirm to the arguments raised by the appellants for the simple reason that the deed of indenture Ext.A2 clearly shows that the original lease as such was acknowledged and confirmed by the lessors. 9. Admittedly, the period of lease under Ext.A1 was 99 years. That be so, the principles laid down by the full bench in Rt. Rev. Dr. Jerome Fernandez’s case (supra) and the decision of the Supreme Court N.K. Rajendra Mohan’s case (supra) squarely applies to the facts of the case, and thus substantial questions of law 1 and 2 are answered against the appellants. 10. Coming to the remaining questions, it must be remembered that the claim for fixity of tenure was only in respect of ‘A’ schedule property of 566.67 cents. Even the defendants do not have the case that they are entitled to hold the ‘B’ schedule property in possession and also claim fixity of tenure over the same. But then, that by itself does not entitle the plaintiff to claim decree for recovery of possession for the ‘B’ schedule property for the reason that the plaintiff had failed to primarily prove the title of the property as well as the identity of the property. So, the findings rendered by the courts below touching upon the alternate relief for recovery of possession against the ‘B’ schedule property cannot termed to be flawed. 11. However, learned Counsel for the appellants submitted that it was due to an inadvertent omission on the part of the plaintiffs that they could not take out an Advocate Commission with the help of a surveyor to identify the ‘B’ schedule property. A reference is made with Ext.A7 document to show that there was a family partition in the year 1957 which would have perhaps thrown a light on the question of title as regards the ‘B’ schedule property. Thus, the learned Counsel for the appellants sought indulgence of this Court for a limited remand for the purpose of enabling the plaintiffs to identify the ‘B’ schedule property and also to prove the title. 12. Thus, the learned Counsel for the appellants sought indulgence of this Court for a limited remand for the purpose of enabling the plaintiffs to identify the ‘B’ schedule property and also to prove the title. 12. Though, the learned Counsel appearing for the contesting defendants opposed the said plea by pointing out that the plaintiffs can very well file a separate suit for declaration of title and recovery of possession, this Court is of the view that since the suit itself was instituted, and the representative capacity notice under order 1 Rule 8 was taken, it will be wholly impermissible for this Court to drive the appellants for filing a fresh suit. Therefore, this Court is of the view that for a limited purpose of enabling the appellants/plaintiffs to identify the plaint the ‘B’ schedule property and also to establish the title in respect of the property, the matter should be remanded back. 13. Accordingly, the substantial questions of law Nos.3 and 4 are answered in favour of the appellants, and it is held that the judgment and decree in respect of the ‘B’ schedule property cannot be sustained. 14. Accordingly, these appeals are partly allowed by confirming the judgment and decree in O.S Nos. 90 of 2009 and 118 of 2011 in respect of ‘A’ schedule property, which is the subject matter of the order dated 07.03.2018 of the Land Tribunal, Thodupuzha in RC No. 1 of 2006 and RC No. 1 of 2013. O.S Nos. 90 of 2009 and 118 of 2011 will stand remanded for the limited purpose of enabling the plaintiffs to prove the title, and also the identity of ‘B’ schedule property. It is made clear that the presence of the defendants, who have contested the suit for the ‘A’ schedule property may not be necessary in the suit. Since the plaintiffs had taken the notice under order 1 Rule 8, it will be open to them to produce such evidence as required to prove the title in respect of the ‘B’ schedule property, and also establish the identity of the property. If on such identification, it is found that ‘B’ schedule property is lying separate and is in possession of third parties then alone the Court needs to consider the case of recovery of possession. If on such identification, it is found that ‘B’ schedule property is lying separate and is in possession of third parties then alone the Court needs to consider the case of recovery of possession. If on the other hand it is found that ‘B’ schedule property forms part and parcel of ‘A’ schedule property, which is subject matter of the decree which has already been confirmed, then no further deliberation shall be made by the court and the proceeding in the suit be terminated forthwith. Parties shall appear before the Sub Court Thodupuzha on 18-5-2026. Registry to transmit the entire records forthwith. Ordered accordingly.