Kerala High Court

Nazeer vs Jameel Sooraj on 13 July, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
   TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                        RSA No.448 OF 2021
        AGAINST THE JUDGMENT AND DECREE DATED 10.3.2021 IN
              A.S.NO.4/2018 OF THE SUB COURT, TIRUR &
 JUDGMENT AND DECREE DATED 18.11.17 IN O.S.NO.155/2013 OF THE
                 MUNSIFF'S COURT, PARAPPANANGADI
APPELLANT/APPELLANT/DEFENDANT:


            NAZEER,
            AGED 44 YEARS,
            S/O.MOHAMMEDKUTTY HAJI,
            PULLISSERI HOUSE,
            KANNAMANGALAM AMSOM,
            KANNAMANGALAM (PO), PIN - 676 304,
            TIRURANGADI TALUK, MALAPPURAM DISTRICT,
            REPRESENTED BY POWER OF ATTORNEY HOLDER,
            FAIZAL ZAMEEL, AGED 45 YEARS,
            S/O.ABDUSALAM, ILLIKKAL HOUSE,
            T.C.ROAD, TIRURANGADI AMSOM DESOM,
            TIRURANGADI TALUK, MALAPPURAM DISTRICT.

            BY ADVS.
            SRI.JAMSHEED HAFIZ
            K.K.NESNA

RESPONDENTS/RESPONDENTS/PLAINTIFFS:


    1       JAMEEL SOORAJ,
            AGED 40 YEARS,
            S/O.POOZHITHARA KUNHALAN,
            KLARI AMSOM DESOM,
            KLARI (PO), PIN - 676 501,
            TIRURANGADI TALUK, MALAPPURAM DISTRICT.
 R.S.A.No.448 of 2021


                                    ..2..


     2          SHAMSUDHEEN,
                AGED 36 YEARS,
                S/O.POOZHITHARA KUNHALAN,
                KLARI AMSOM DESOM,
                KLARI (PO), PIN - 676 501,
                TIRURANGADI TALUK, MALAPPURAM DISTRICT.

     3          RAMLALATHEEF,
                AGED 46 YEARS,
                D/O.POOZHITHARA KUNHALAN,
                KLARI AMSOM DESOM,
                KLARI (PO), PIN - 676 501,
                TIRURANGADI TALUK, MALAPPURAM DISTRICT.

     4          HASEENA BACKER,
                AGED 38 YEARS,
                D/O.POOZHITHARA KUNHALAN,
                KLARI AMSOM DESOM,
                KLARI (PO), PIN - 676 501,
                TIRURANGADI TALUK, MALAPPURAM DISTRICT.

                 BY ADVS.
                        SRI.K.RAMACHANDRAN
                        SRI.P.RAMACHANDRAN
                        SRI.AJAI JOHN


         THIS    REGULAR   SECOND    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 09.07.2021, THE COURT ON 13.07.2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.448 of 2021


                               ..3..




                          JUDGMENT

This Regular Second Appeal is directed against the

judgment and decree dated 10.3.2021 in A.S.No.4/2018

of the Sub Court, Tirur which arose from the judgment

and decree dated 18.11.17 in O.S.No.155/2013 of the

Munsiff's Court, Parappanangadi. The appellant is the

defendant and the respondents are the plaintiffs in

O.S.No.155/2013. The parties are hereinafter referred to

as 'the plaintiffs' and 'the defendant' according to their

status in the trial court unless otherwise stated.

2. The suit was one for eviction. The case of the

plaintiffs in short is as follows:-

The plaintiffs are the title holders of plaint

schedule building wherein the defendant has been in

occupation of the same on a monthly rent of Rs.9,000/-.

As per the agreement dated 11.12.11, the period of said R.S.A.No.448 of 2021

..4..

lease was extended for 11 months from 23.11.11

Thereafter the rent was enhanced to Rs.9,900/- per

month. The plaint schedule building situates on the side of

the National Highway at Edarikode. The rent of the plaint

schedule building was paid to the 2nd plaintiff directly. The

defendant had kept rent in arrears from 2013 April

onwards. The lease got terminated by efflux of time.

Though the plaintiffs demanded to give vacant possession

of the plaint schedule building, the defendant was not

ready for the same. The defendant filed O.S.No.118/13

before the Munsiff's Court, Parappanangadi restraining the

plaintiff from evicting him forcibly. The plaintiffs issued a

notice on 20.5.2013 terminating the tenancy. The notice

was received by the defendant. Since the defendant is not

ready to give vacant possession to the plaintiffs, the

plaintiffs filed the present suit seeking vacant possession

of the plaint schedule building from the possession of the

defendant.

R.S.A.No.448 of 2021

..5..

3. The defendant filed written statement mainly

contending that the defendant constructed a godown on

the side of plaint schedule room having a sq.ft. of 1100 in

Re.Sy.104/2 in the year 2005 at an expense of

Rs.4,75,000/-. It is contended that even if the agreement

is lease, the entrustment on the side of the plaint

schedule building will become separate and the defendant

is entitled to get protection under Section 60(b) of the

Indian Easements Act. It is also contended that the lessee

has made valuable improvement in the property

expending more than Rs.4,75,000/-. According to him,

there is no arrears of rent and the demand notice has

been properly answered.

4. On the basis of the above pleadings, the trial

court framed necessary issues and conducted trial. On the

side of the plaintiffs PW1 was examined and marked

Exts.A1 to A6. On the side of the defendant DWs.1 to 4 R.S.A.No.448 of 2021

..6..

were examined and marked Exts.B1 to B5. Exts.C1, C1(a)

and C1(b) were also marked.

5. The trial court granted a decree for eviction. The

defendant preferred first appeal before the first appellate

court. It was also dismissed confirming the judgment and

decree of the trial court. Hence this second appeal.

6. Heard Sri.Jamsheed Hafiz, the learned counsel

for the appellant and Sri.P.Ramachandran, the learned

counsel for the respondents.

7. The learned counsel for the appellant contended

that a suit for eviction filed without issuing requisite notice

as contemplated under Section 106 of the Transfer of

Property Act is liable to be dismissed. According to the

learned counsel for the appellant, the plaintiffs permitted

the defendant by virtue of Ext.B5 that he has no objection

in making improvements in the plaint schedule building

and thereby he has acquiesced the act of the tenant. R.S.A.No.448 of 2021

..7..

8. On the other hand, the learned counsel for the

respondents contended that the first appellate court

considered the validity of the notice issued under Section

106 of the Transfer of Property Act and held that the last

tenancy was created for a period of 11 months from

23.11.2011. Hence, according to the learned counsel for

the respondents, the tenancy stood terminated by the

efflux of time on 22.10.2012. According to the learned

counsel, after the expiry of lease period and in the

absence of payment of rent by the lessee, the status of

the lessee will be that of tenant at sufferance and not a

tenant holding over. The learned counsel for the

respondents further submitted that the suit was filed way

back in the year 2013 and the defendant has been placing

unnecessary contentions to delay and protract the

proceedings without any bonafides.

R.S.A.No.448 of 2021

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9. On going through the written statement the

defendant did not raise any contention that the suit is

premature. He also did not press for that issue before the

trial court. Strangely enough, such an argument was

raised for the first time before the first appellate court. It

is a fact that the suit was filed on 11.6.2013. Even before

serving summons on him, the period stipulated in Ext.A1

had expired. The law mandates only 15 days notice in

writing for termination. In this case the suit was filed on

the 20th day from the date of receipt of the notice. In the

case on hand, the lease was terminated by Ext.A1. The

period stipulated in Ext.A1 had also expired on

22.10.2012. In V.Dhanapal Chettiar v. Yesodai Ammal

[1979 AIR 1745] the Apex Court held as follows:-

"A lease between a lessor and a lessee comes into existence by way of contract when the parties to the contract agree on rent, duration of tenancy and other relevant terms. Section 111 of the Transfer of R.S.A.No.448 of 2021

..9..

Property Act provides various methods by which a lease of immovable property can be determined. Under clause (h) of Section 111 a lease determines on the expiry of a notice to determine the lease given by the landlord to the tenant. Once the lease is determined by notice the lessor can enforce his right of recovery of possession of the property. If the lease does not stand determined under any of the clauses (a) to (g) of Section 111 notice under Section 106 Transfer of Property Act to determine the lease is necessary."

10. In paragraph 7 of the first appellate court

judgment it is stated that though the contention in the

appeal memorandum is that the transaction is a license

and the defendant has protection under Section 60(b) of

the Indian Easements Act, such a case was given up by

the counsel for the appellant during hearing. No such

contention has been raised before this Court in second

appeal. It is clear from the circumstances that the R.S.A.No.448 of 2021

..10..

defendant, who has been in occupation of the scheduled

building, is raising untenable contentions to continue in

the premises somehow or other.