Kerala High Court
V.V.Ramachandran Nair vs Sasikumar on 8 July, 2025
R.S.A.No.242/2025
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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.
---------------------------
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
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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
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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
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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
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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
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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
