Nelliyot Padmanabhan vs Kaittal Mayan Parambath Abdul ...
2022 Latest Caselaw 10841 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                     THE HONOURABLE MRS. JUSTICE M.R.ANITHA
            FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944
                                RSA NO. 562 OF 2016
 AGAINST THE COMMON JUDGMENT IN AS NO.17 AND 18 OF 2013 AND DECREE IN A.S.NO.18
OF 2013 ON THE FILE OF ADDITIONAL DISTRICT COURT - III, THALASSERY DATED 04.01.2016


AGAINST THE JUDGMENT AND COUNTER CLAIM DECREE IN O.S.NO.316 OF 2009 ON THE FILE
                OF MUNSIFF'S COURT, THALASSERY DATED 10.12.2012.
APPELLANT/APPELLANT/PLAINTIFF:

             NELLIYOT PADMANABHAN, AGED 61 YEARS
             S/O. KRISHNAN,TRADER,
             RESIDING AT NELLIYOT HOUSE,
             CHENGAPRAM AMSOM,, VANMUGHAM DESOM,
             KOILANDY TALUK, KOZHIKODE DISTRICT.

             BY ADVS.
             SRI.C.KHALID
             SRI.T.P.SAJID


RESPONDENTS/RESPONDENTS/COUNTER CLAIMANT/DEFENDANT NO.1 AND DEFENDANT

NO.2:

1 KAITTAL MAYAN PARAMBATH ABDUL MAJEED (DIED), S/O. MAMOO, AGED 64 YEARS, RESIDING AT THALASSERY TALUK, VADIKKAKAM DESOM, KANNUR DISTRICT-670101. (LEGAL HEIRS IMPLEADED) 2 POYYERI VAZHAYIL PADMANABHAN ALIAS, N PADMANABHAN, S/O. PARU, AGED 60 YEARS, PADMALAYAM P.O. THIRUVANGAD,THALASSERY - 3.

3 ADDL.MALLATTI RANDU PURAYIL MARIYU, AGED 55 YEARS, W/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY, PIN-670 101.

4 ADDL.SAJANA ANWAR, R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

AGED 37 YEARS, D/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY, PIN-670 101.

5 ADDL.SHAFANA, AGED 35 YEARS, D/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY, PIN-670 101.

6 ADDL.FEBINA, AGED 33 YEARS, D/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY, PIN-670 101.

7 ADDL.HELNA, AGED 31 YEARS, W/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY, PIN-670 101.

8 ADDL.NESLE, AGED 29 YEARS, D/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY, PIN-670 101.

(LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 TO 8 AS PER ORDER DATED 29.08.2019 IN IA.4/2018.)

BY ADV PRANOY K.KOTTARAM-ADDITIONAL RESPONDENTS

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 RSA NO. 613 OF 2016 AGAINST THE COMMON JUDGMENT AND DECREE IN A.S.NO. 17 AND 18 OF 2013 AND DECREE IN A.S.NO.17 OF 2013 ON THE FILE OF ADDITIONAL DISTRICT COURT-III, THALASSERY DATED 04.01.2016

AGAINST THE JUDGMENT AND COUNTER CLAIM DECREE IN O.S.NO.316 OF 2009 ON THE FILE OF MUNSIFF'S COURT, THALASSERY DATED 10.12.2012.

, APPELLANT/APPELLANT/PLAINTIFF:

NELLIYOT PADMANABHAN, AGED 61 YEARS S/O.KRISHNAN, TRADER, RESIDING AT NELLIYOT HOUSE, CHUNGAPRAM AMSOM VANMUGHAM DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT.

BY ADVS.

SRI.C.KHALID SRI.T.P.SAJID

RESPONDENTS/RESPONDENTS/DEFENDANTS:

1 KAITTAL MAYAN PARAMBATH ABDUL MAJEED, (DIED) AGED 64 YEARS, S/O.MAMOO, AGED 64 YEARS, RESIDING AT THALASSERY TALUK, VADIKKAKAM DESOM, KANNUR DISTRICT, PIN-670 101.

2 POYYERI VAZHAYIL PADMANABHAN ALIAS N.PADMANABHAN AGED 60 YEARS, S/O.PARU, PADMALAYAM, PO THIRUVANGAD, THALASSERY-3 3 ADDL.MALLATTI RANDU PURAYIL MARIYU, AGED 55 YEARS, W/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

THALASSERY,PIN-670 101.

4 ADDL,.SAJANA ANWAR,, AGED 37 YEARS, D/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY,PIN-670 101.

5 ADDL.SHAFANA, AGED 35 YEARS, WDO.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY,PIN-670 101.

6 FEBINA, AGED 33 YEARS, D/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY,PIN-670 101.

7 ADDL.HELNA, AGED 31 YEARS, D/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY,PIN-670 101.

8 ADDL.NESLE, AGED 29 YEARS, S/O.LATE K.M.ABDUL MAJEED, 'HELNA', CHETTAMKUNNU P.O., THALASSERY, PIN-670 101.

(LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 TO 8 AS PER ORDER DATED 29.08.2019 IN IA.5/2018.)

BY ADVS.

SRI.P.BHARATHAN SRI.GRASHIOUS KURIAKOSE SR.

SRI.GEORGE MATHEWS SRI.T.T.RAKESH

SRI. GRACIOUS KURIAKOSE SR - R1 TO 3

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

COMMON JUDGMENT

Dated this the 28th day of October, 2022.

R.S.A.No.613 of 2016 has been directed against the judgment

and decree in A.S.No. 17 of 2013 on the file of Additional District

Court-III, Thalassery which arise out of judgment and dercee in in

O.S.No. 316 of 2009 on the file of Munsiff's Court, Thalassery.

R.S.A.No.562 of 2016 has been directed against the judgment and

decree in A.S.No.18/2013 on the file of Additional District Court-III,

Thalassery which in turn arise out of the decree in counter claim in

O.S.No.316 of 2009 on the file of Munsiff Court, Thalassery.

2. Suit is one for declaration and consequential injunction.

(Parties will hereafter be referred as per their status before the

trail court) Plaintiff is the appellant in both R.S.As. 1 st defendant is

the owner of the plaint B schedule room which was let out to the

mother of the 2nd defendant by name Poyyeri Vazhayil Paru. 2nd

defendant is her son and continued as tenant after her death. In

the year 1981, Paru sublet the room to the plaintiff on a monthly R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

rent of Rs.120/- which was periodically enhanced to Rs.700/-. The

subletting was done with the consent and knowledge of previous

owner and the 1st defendant. Plaintiff has been conducting

stationery business in that room. 2nd defendant informed that

while he used to pay a marginal increase in rent to the 1 st

defendant, 1St defendant never objected the possession and

enjoyment of the building by the plaintiff. Plaintiff was paying

rent to Paru till her death and thereafter to the 2nd defendant till

may 2009 and receipts are also being issued. 2 nd defendant refused

to receive rent from June 2009 onwards. On enquiry it was found

that 1st defendant filed a suit against 2nd defendant as

O.S.No.164/2005 and that suit was compromised by fraud, collusion

and misrepresentation. The defendants were well aware that the

plaintiff is in possession of the room, suppressing that fact the suit

has been filed. The suit for recovery of possession would not lie

against the 2nd defendant. Since the room is situated in Thalassery

Municipality where the Kerala Building (Lease and Rent control)

Act, 1965 is made applicable. So decree passed is not an executable R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

decree which was obtained by concealing sub lease and possession

of the room by the plaintiff. 1St defendant took effective measures

to execute the decree in O.S.No.164/2005 fraudulently obtained.

Hence, the suit has been filed for declaration or cancellation of the

decree in O.S.No.164/2005 dated 26.06.2009 on the file of Munsiff's

Court, Thalassery as null and void as is obtained by fraud, collusion

and misrepresentation. Permanent injunction also sought for

restraining the 1st defendant from executing that decree.

3. 2nd defendant remained exparte. 1St defendant filed

written statement with counter claim alleging that property where

the plaint schedule building situates originally belonged to Mallatti

Randupurayil Pach @ Pakrichi Umma. She executed a commercial

lease deed in favour of Poyyeri Vazhayil Paru on 23.09.1971 for six

years with a rent of Rs.25 per month. Paru constructed a building

in that property and was conducting a business. The period of

lease was further extended to six years as per another registered

deed. In the meanwhile by change of hands the property where

the building stands came to be in the possession of the defendant R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

as per registered deed of the year 1996. Paru was informed of the

change of ownership by a registered notice dated 16.04.2003. By

the same notice tenancy was terminated and she was directed to

surrender the land and Paru filed written statement raising

untenable contentions including claim of fixity of tenure under

Kerala Land Reforms Act, 1963. The plaint schedule room was

constructed by Paru only in the year 1971. After sending the reply

she died and 2nd defendant is her only son. Hence first defendant

filed O.S.No.164/2005 for arrears of rent and for mandatory

injunction to demolish the building and for recovery of possession.

It was initially decreed exparte and 2 nd defendant appeared and got

the exparte decree set aside. Thereafter the 2 nd defendant

approached the 1st defendant and agreed to vacate the premises

and 1st defendant paid Rs.70,000/- and the decree was passed as

per the compromise. 1St defendant was not aware that the room

was in the possession of plaintiff. It was not disclosed by the 2 nd

defendant and the name of the 2 nd defendant and the plaintiff are

identical. The alleged sub lease in the year 1981 to the plaintiff is R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

denied. The rent receipts have been produced for the purpose of

this Court in collusion with the plaintiff and the 2nd defendant.

4. First defendant never accepted the plaintiff as sub tenant,

nor received rent from 2nd defendant as part of the rent paid by the

plaintiff. So a counter claim has been filed to the effect that the

plaintiff is only a tenant under defendant No.2 who is a commercial

lessee which was created after 1967. Plaintiff and the 2 nd defendant

have no fixity of tenure. The tenancy was terminated by a

registered notice and a mandatory injunction is also sought to

demolish the building.

5. Plaintiff filed reply to the counter claim contending that

the possession of the building by the plaintiff is known to the 1 st

defendant. The mother of the 2 nd defendant is in occupation of the

land even prior to 1967. 2nd defendant is entitled to get protection

under Kerala Land Reforms Act, 1963 as the legal heir of

commercial lessee and 2nd defendant cannot collude with the 1st

defendant to the detriment of the right of the plaintiff. R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

6. PW1 examined and Exts. A1 to A6 were marked from the

side of plaintiff. Exts. B1 to B9 series were marked and 1 st

defendant was examined as DW1. Ext.C1 and C2 also marked.

7. After trial, the Trial court found that 1 st defendant

terminated the lease in the year 2003 as per Ext.B6. It is also found

that the plaintiff is not entitled to fixity of tenure and accordingly

the suit was dismissed and counter claim was allowed.

8. Aggrieved by the dismissal of the suit, plaintiff filed

A.S.No.17/2013 and against the decree passed in the counter claim

A.S.No.18/2013 was also filed.

9. Additional District Court on reappreciating the facts and

circumstances and evidence, dismissed both appeals and confirmed

the judgment and decree passed by the Trial court.

10. Having lost in both forums, plaintiff approaches this

Court in this Regular Second Appeal. Notice was issued to the

respondents/defendants. 1st respondent/1st defendant died

pending this proceedings. His legal heirs were impleaded as R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

additional respondents No.3 to 8. Against 2nd respondent though

service is complete, there is no appearance.

11. Lower courts records were called for and perused. Heard

both sides.

12. According to the learned counsel for the plaintiff,

judgment and decree in O.S.No.164/2005 has been obtained by

fraud and collusion between defendants Nos.1 and 2 and that is

very much clear from Ext.A6. It is also his contention that Paru the

predecessor in interest of the 2nd defendant was a commercial

lessee and had taken the lease prior to 1967 and hence, she is

entitled for fixity of tenure. Since the plaintiff is in occupation of

the premises from 1981 onwards under 2nd defendant who is the

son of Paru and original tenant with the knowledge of first

defendant, the decree passed in O.S.No.164/2005 will not bind him.

13. It is also contended that he has been occupying room from

1981 onwards and is conducting stationary business. He has produced

the rent receipt right from 11.01.1981 and it would indicate that 1st R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

defendant is well aware that he is conducting the business in the

plaint schedule room. In other words, according to the learned

counsel, plaintiff is a sub lessee with knowledge and consent of

landlord, 1st defendant. Since the building situates in an area

where ( Kerala Building (Lease and Rent control) Act, 1965 is made

applicable, a suit for eviction is not maintainable. At the time of

argument the learned counsel also claims fixity of tenure under the

Kerala Land Reforms Act, 1963 as a commercial lessee.

14. The learned counsel for the 1st defendant on the other

hand contended that both courts concurrently found that plaintiff

is a sub tenant under the 2nd defendant. There is no fixity of tenure

to the 2nd defendant in view of the compromise petition filed in

O.S.No.164/2005 and hence, the plaintiff has no legal right to

continue the plaint schedule room. It is also his contention that

plaintiff has no consistent case and his specific allegation in the

plaint is that he is a sub tenant entitled for the benefit of the

provisions of Kerala Building (Lease and Rent control) Act, 1965.

Whereas during the argument before this Court, he claimed R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

benefits under Kerala Land Reforms Act, 1963 and hence, plaintiff

has no consistent case. Hence, no interference is required in this

R.S.A.

15. According to the learned counsel for the plaintiff

documents produced from his side as Ext.A1 series rent receipts

starting from 11.01.1981 onwards would prove in abundance that

he is in occupation of the schedule room with knowledge of the 1 st

defendant, the owner. He has also raised a contention that he is a

sub tenant under 2nd defendant with consent and knowledge of the

1st defendant and since he has not been made a party in

O.S.No.164/2005, the judgment and decree in O.S.No.164/2005 will

not bind him.

16. First of all, though the plaintiff claims to be in occupation

of the schedule room with knowledge and consent of the 1 st

defendant, the owner of the building and his predecessor,

admittedly by the plaintiff, he never paid any rent to the 1st

defendant or his predecessor directly. So also eventhough he has R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

got an allegation in the plaint that 2 nd defendant had informed the

plaintiff that he used to pay marginal increase in the rent to the 1 st

defendant in accordance with increase in payment by plaintiff,

apart from the bald avernments in the plaint and the proof

affidavit, there is no reliable materials to conclude that the

plaintiff is in occupation of the plaint schedule room with the

knowledge of the 1st defendant or the previous owner.

17. During cross examination, he stated that he is conducting

a business in the room as per the dealings with the mother of the

2nd defendant and the stipulation in that dealings is known to the

mother of the 2nd defendant as well as the previous owner. But he

did not depose first defendant is aware of the said dealings.

Further he categorically admit that there is no documents to show

that previous owner has knowledge of those dealings. Further

more, according to him, for taking the building from the mother of

the 2nd defendant, there was a document but that has not been

produced. He also admitted that the documents produced by him

is pertaining to the dealings in between himself and the mother of R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

the 2nd defendant.

18. So in effect there is no document or any other convincing

evidence to establish that the building is occupied by him as a sub

tenant with the knowledge of the 1st defendant, present owner or

previous owner. So the claim of benefit by the plaintiff under the

Kerala Building (Lease and Rent control) Act, 1965 as a sub tenant

occupying the building with the knowledge and consent of the

owner of the building is not proved.

19. The learned counsel for the 1st defendant has also got a

contention that the rent receipts produced only show the receipts

issued in the name of N. Padmanabhan and according to him, the

name of the 2nd defendant as well as that of the plaintiff is one and

the same and even if the rent receipt seems to have been issued in

the name of N. Padmanabhan it is the name of the 2 nd defendant,

the tenant. So, the plaintiff cannot contend that rent receipt was

being issued in his name by the 1st defendant. 1St defendant has got

a specific contention that the rent receipts were being issued in the R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

name of N. Padmanabhan who is the 2 nd defendant. So also as has

been rightly found by the courts below, the fact that the plaintiff

has been conducting the business in the shop room and the shop

room is situated in a busy area in Thalassery also cannot be taken

advantage of by the plaintiff since the landload need not

necessarily know the capacity in which he is doing the business.

20. The next argument advanced by the learned counsel is

regarding the fraud played upon him by the 1 st defendant and the

2nd defendant in compromising O.S.No.164/2005. According to him,

Paru the mother of the 2nd defendant had taken the land on lease as

a commercial lessee before 1967. She has raised such a specific

contention in the written statement filed in O.S.No.164/2005 also.

But Ext.A6 compromise petition would show that the parties

agreed that commercial lease was only in the year 1971 as alleged

by the plaintiff in that case and the contention that the commercial

lease entrustment was before 1967 is given up by the 2nd defendant

herein and the plaintiff in that suit gave Rs.70,000/- to the 2 nd

defendant towards the value of the building constructed by him R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

and also value of the occupancy right. So according to him, the

contention regarding the commercial lease was given up by the 2 nd

defendant inorder to defeat his right over the plaint schedule

building. It is also his contention that it was because of that there

is specific statement in Paragraph No.2 of the compromise petition

that if the defendant fail to vacate the plaint schedule premises

within the time there will be a direction to evict defendant and his

men. But that appears to be a flimsy argument because in all the

compromise petitions such clauses used to be inserted

apprehending disobedience by anybody under the defendant. In

other words, such a statement in the compromise petition will not

leads to an inference that the plaintiff in that case was aware of the

occupation of the plaintiff as a sub tenant. So also during cross

examination, the plaintiff pleaded ignorance about the right of the

mother of the 2nd defendant in the schedule property. He also kept

quiet when a question was put to the effect that the 2 nd defendant's

mother was occupying the building as a tenant.

21. So also Ext.B5 executed between Malatti Randupurayil R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

Pach @ Pakrichi Umma that is the predecessor of the 1 st defendant

and the mother of the 2nd defendant Poyyeri Vazhayil Paru would

clearly state that the schedule property was taken on Marupatta

agreement from the 1st party by the 2nd party on 23.09.1971 as per

Marupatta deed No.936/1971. So that would cut the root of the

contention of the plaintiff regarding the commercial lease before

1967 between Paru, the mother of the 2 nd defendant and the

previous owner.

22. Further more, as rightly contended by the learned counsel

for the 1st defendant in the plaint the specific avernment of the

plaintiff is that he is occupying the building as a sub tenant under

the mother of the 2nd defendant and it was sub let to him in the

year 1981. It is also contended that the building is situated in

Thalassery Municipality where the Kerala Building (Lease and Rent

control) Act, 1965 is made applicable and hence a suit for recovery

of possession will not lie against the 2nd defendant. The specific

allegation of the plaintiff in O.S.No.164/2005 is that 2 nd defendant's

mother was a commercial lessee under the previous owner and R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

that contention is fortified by Ext.B5 marupatta agreement.

23. Hence, overall evaluation of the facts and circumstances

and evidence adduced would reveal that the plaintiff is a sub lessee

under the 2nd defendant without consent of first defendant and he

has no right to continue the occupation of schedule room when a

decree has been obtained by the owner of the building against 2 nd

defendant. In other words, the decree passed in O.S.No.164/2005

will bind the plaintiff. So the counter claim sought for by the 1 st

defendant has been rightly allowed by the courts below in view of

Ext.B6 compromise decree.

24. Hence, on a meticulous evaluation of the judgments and

decree passed by the courts below, I am of the considered view that

both courts have evaluated the facts and circumstances and

evidence adduced in a correct perspective and no substantial

question of law emerges for entertaining these second appeals.

Accordingly, both appeals stand dismissed. In the facts and

circumstances, parties shall bear their respective costs. R.S.A NO. 562 OF 2016 and R.S.A NO. 613 OF 2016

The learned counsel request for permission on behalf of the

appellant to continue the occupation of premises for a period of

two months. Counsel for the first respondent has no objection in

granting one month time for vacating the premises. The case is of

the year 2009. Hence, appellant is permitted to continue the

occupation of the premises for a further period of one month

starting from this date on condition that appellant would file an

affidavit within ten days before the Trial court undertaking to

vacate the premises within one month starting from this date.

Sd/-

rps/                                              M.R.ANITHA, JUDGE