Kerala High Court
V.V.Ramachandran Nair vs Sasikumar on 8 July, 2025
R.S.A.No.242/2025
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2025:KER:50869
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
RSA NO. 242 OF 2025
AGAINST THE JUDGMENT DATED 11.12.2024 IN AS NO.37 OF
2019 OF SUB COURT, CHERTHALA ARISING OUT OF THE JUDGMENT
DATED 30.03.2019 IN OS NO.840 OF 2014 OF ADDITIONAL MUNSIFF
COURT,CHERTHALA
APPELLANT/APPELLANT/DEFEBDANT:
V.V.RAMACHANDRAN NAIR
AGED 70 YEARS
S/O VELAYUDHAN NAIR, VELLEVELIYIL, EZHUPUNNA.PO.,
EZHUPUNNA VILLAGE, EZHUPUNNA MURI, CHERTHALA
TALUK, ALAPPUZHA DISTRICT, PIN - 688537
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN
SMT.PINKU MARIAM JOSE
SMT.K.M.FATHIMA
RESPONDENT/RESPONDENT/PLAINTIFF
SASIKUMAR
AGED 54 YEARS
S/O GOPALAN NAIR, SARASWATHI MANDIRAM,
EZHUPUNNA.P.O., EZHUPUNNA MURI, EZHUPUNNA VILLAGE,
CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN - 688537
BY ADVS.
SRI.R.RENJITH
SRI.SANTHAN V.NAIR
SMT.MANJUSHA K
R.S.A.No.242/2025
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OTHER PRESENT:
ADV.R RENJITH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 08.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.S.A.No.242/2025
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EASWARAN S.,J.
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R.S.A No.242 of 2025
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Dated this the 8th day of July, 2025
JUDGMENT
This appeal arises out the judgment and decree in O.S.No.840/2014 on the files of the Additional Munsiff Court, Cherthala and the Sub Court, Cherthala in A.S.No.37/2019.
2. The brief facts necessary for the disposal of the appeal are as follows:-
The respondent / plaintiff filed a suit for eviction of the appellant / defendant from the plaint schedule property. The plaintiff came into the possession of the plaint schedule property by virtue of Sale Deed No.36/2008 of Kuthiathodu S.R.O. The defendant was a licensee and was permitted to construct the small shed conducting a tea stall for a monthly premium of Rs.600/-. The purchase of the plaint schedule property by the plaintiff was brought to the notice of the R.S.A.No.242/2025 4 2025:KER:50869 defendant as earlier as in 2008. Thereafter, the plaintiff issued a lawyer's notice dated 07.11.2014 to the defendant requiring the defendant to vacate the plaint schedule property. However, the defendant refused and against the same, the suit is filed. The defendant filed written statement contenting that the suit is not maintainable and that the predecessors of the defendant had instituted O.S.No.301/2007 before the Munsiff Court, Cherthala for a permanent prohibitory injunction against one K.Gopinathan Nair and others with respect to the plaint schedule property. The Sale Deed No.36/2008 relied on by the plaintiff does not relate to the defendant or his right over the plaint schedule property. Other contentions were also raised by the defendant. On behalf of the plaintiff, PW1 and PW2 were examined and Exts.A1 to A13 were marked. On behalf of the defendant, DW1 and DW2 were examined and Exts.B1 to B6 were marked. Exts.X1 (subject to proof) and X2 were marked as third party documents. The Trial Court, on an R.S.A.No.242/2025 5 2025:KER:50869 appreciation of the oral and documentary evidence, came to the conclusion that the occupation of the defendant in the shed is purely a licence, therefore, the plaintiff is entitled to get vacant possession of the plaint schedule property and to get fee towards the damages for use and occupation of the building in the plaint schedule property of Rs.100/- per day until the actual physical possession of the plaint schedule property. The first appellate court, on a consideration of the contention raised on behalf of the defendant, concurred the findings of the Trial Court as regards the entitlement of the plaintiff to get vacant possession of the plaint schedule property. However, considering the plea of the appellant / defendant, the damages for use and occupation was restricted to Rs.600/- per month from the date of suit till actual possession was handed over. Aggrieved by the judgment and decree of the first appellate court, the present appeal is preferred.
3. Heard Sri.K.S.Hariharaputhran, the learned R.S.A.No.242/2025 6 2025:KER:50869 counsel appearing for the appellant and Sri.R.Ranjith, the learned counsel appearing for the respondent
4. While admitting the appeal, this Court framed issued notice to the respondent on the following question of law:-
"2. Whether the appellant can be granted sufficient time to vacate the premises as ordered by the trial court and confirmed by the first appellate court."
5. When the matter came up for consideration on 27.06.2025, this Court recorded the undertaking of the appellant that he will vacate the premises on or before 30.06.2025. Accordingly, this appeal was listed for further consideration today.
6. When the matter is taken up for consideration today, learned counsel appearing for both sides affirmed that the appellant has vacated the plaint schedule property and that the vacant possession has been handed over to the respondent / plaintiff.
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7. The learned counsel for the appellant would, however, request this Court to grant a relaxation as regards the damages for use and occupation as fixed by the first appellate court. According to the appellant, the financial condition of the appellant is not desirable so as to enable him to pay the amount as ordered by the first appellate court.
8. The learned counsel for the respondent / plaintiff would point out that no concession as regards the damages for use and occupation be granted by this Court since from 2008 onwards the respondent / defendant is continuing in the property without paying any rent. However, he would point out that this Court is inclined to modify the judgment and decree of the first appellate court, considering the interest of plaintiff protected in the suit.
9. On a consideration of the rival submissions raised across the bar, this Court is of the considered view that since the appellant has voluntarily vacated the plaint schedule R.S.A.No.242/2025 8 2025:KER:50869 property without any orders from this Court, it will be just and proper that the concession be granted as regards the damages for use and occupation of the plaint schedule property. It is more so when, the plaintiff has not preferred any appeal as regards the claim for arrears of licence fee and that the first appellate court probably exercising the powers under Rule 22 of Order 41 of the Code of Civil Procedure had fixed the damages for use and occupation of the building in the plaint schedule property.
10. Considering the entire facts and circumstances, this Court is of the view that the amount fixed by the first appellate court will be reduced to Rs.250/- per month. Accordingly, the judgment and decree passed by the Sub Court, Cherthala in A.S.No.37/2019 is modified and the appellant is directed to pay the use and occupation charges of Rs.250/- per month from the date of suit till the date of actual handing over of the physical possession of the plaint schedule property. The aforesaid amount shall be paid in five R.S.A.No.242/2025 9 2025:KER:50869 equal monthly installments, starting from 15.07.2025. If there is any default in payment of the amount as directed by this Court, it will be open for the respondent / plaintiff to realise the amount by initiating appropriate execution proceedings.
In the above observations, this appeal is disposed of.
Sd/-
EASWARAN S JUDGE bng