Kerala High Court
Hindu Mahasabha Foundation (Trust) vs Manjula on 21 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
EX.SA NO. 4 OF 2025
AGAINST THE JUDGMENT DATED 11.03.2025 IN AS NO.7 OF
2025 OF III ADDITIONAL DISTRICT COURT, THRISSUR ARISING OUT
OF THE JUDGMENT DATED 22.11.2024 IN E.A. NO. 3070 IN EP
NO.741 OF 2024 OF 2024 IN RCP NO. 12 OF 2022 OF PRINCIPAL
MUNSIFF COURT,THRISSUR
APPELLANT/APPELLANT NO. 1/CLAIM PETITIONER NO.1:
HINDU MAHASABHA FOUNDATION (TRUST)
AGED 45 YEARS
REPRESENTED BY ITS PRESIDENT/TRUSTEE AJAY KAIMAL,
S/O VIJAYAN KAIMAL, REG NO. 150 (IV/2020) NO.
4/184, NEAR MANALARUKKAVU TEMPLE, THRISSUR,
PIN - 680 010
BY ADV ANUPAMA SUBRAMANIAN
RESPONDENTS/RESPONDENTS/PETITIONER NO. 2/DECREE HOLDER AND
JUDGMENT DEBTOR/CLAIM PETITIONER NO. 2 AND APPELLANT NO.2:
1 MANJULA
AGED 58 YEARS
W/O. SELVARAJ, RAJA NIVAS HOUSE, PERINGANDOOR
VILLAGE, PERINGADOOR DESOM, THALAPILLY TALUK,
THRISSUR, PIN - 680 581
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EX.SA NO. 4 OF 2025
2
2 RAJA S
AGED 32 YEARS
S/O. SELVARAJ, RAJA NIVAS HOUSE, PERINGADOOR
VILLAGE, PERINGADOOR DESOM, THALAPILLY TALUK,
THRISSUR, PIN - 680 581
3 AKHILA BHARATHA HINDU MAHASABHA
HINDU MAHASABHA BHAVAN, 4/185, VIYYUR P.O.,
THRISSUR REPRESENTED BY PRESIDENT/TRUSTEE KISHAN,
S/O. C.J. JOB, CHIVILEKKAL HOUSE, HOUSE NO. 49,
HARITHA NAGAR, MULANKUNNATHUKAVU P.O., THRISSUR,
PIN - 680 010
4 SREEJITH
AGED 43 YEARS
TRUSTEE, HINDU MAHASABHA FOUNDATION (TRUST), REG
NO. 150/(IV/2020) NO. 4/185, NEAR MANALARUKKAVU
TEMPLE, THRISSUR - 680 010, S/O. KOCHUMON,
POOKODAN HOUSE, NELLANKARA DESOM, NETISSERY
VILLAGE, THRISSUR, PIN - 680 651
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 21.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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EX.SA NO. 4 OF 2025
3
JUDGMENT
1. This Execution Second Appeal arises from a Claim Petition
filed by the Appellant/Trust and the 4th respondent Trustee
under Order 21 Rule 97 C.P.C. The respondents 1 and 2
are the landlords with respect to the residential house
bearing Building No.4/185.
2. According to the respondents 1 and 2, it was leased to the
3rd respondent/Akhila Bharata Hindu Mahasabha. The
respondents 1 and 2 filed R.C.P. No.12/2022, seeking
eviction of the 3rd respondent from the premises under the
provisions of the Kerala Buildings (Lease and Rent Control)
Act, 1965, a residential house bearing Building No.4/185.
Eviction of the 3rd respondent was ordered by the Rent
Control Court as per Order dated 22.07.2023.
3. The respondents 1 and 2 filed E.P. No.741 of 2024 in R.C.P.
No.12/2022 to execute the order of eviction against the 3 rd
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EX.SA NO. 4 OF 2025
respondent.
4. The appellant and 4th respondent/Trustee filed E.A.
No.3070/2024 in E.P. No.741 of 2024 to dismiss the
Execution Petition on the ground that it is the first applicant
who is the tenant of the petition schedule building based on
an oral lease agreement with the respondents 1 and 2 on
07.08.2020.
5. Going by the allegations in EA No. 3070/2024, the
petitioners entered into an oral lease agreement with the 1 st
and 2nd respondents for occupying the petition schedule
building from 07.08.2020 fixing the monthly rent @ of Rs.
15,000/-, an advance amount of Rs. 50,000/- was also
given to the respondents 1 and 2 and electricity charges
was also agreed to be paid by the petitioners, the
petitioners have been giving monthly rent to the
respondents 1 and 2, but without impleading the petitioners,
the respondents 1 and 2 obtained an eviction order against
the 3rd respondent and on the strength of the said order, the
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EX.SA NO. 4 OF 2025
respondents 1 and 2 is attempting to evict the petitioners
from the petition schedule building.
6. The Petition was opposed by respondents 1 and 2 by filing
an objection contending inter alia that the Petitioners are
not the tenants of the petition schedule building. There is no
oral or written lease agreement between the petitioners and
respondents 1 and 2. The respondents 1 and 2 are not
aware of the petitioners. The respondents 1 and 2 rented
out the petition schedule building to Akhila Hindu Maha
Sabha/3rd respondent and the 3rd respondent defaulted the
monthly rent and when the rent was demanded, the 3 rd
respondent filed O.S.No.2654/2019 before the Munsiff's
Court, Thrissur for getting an order against forceful eviction
by the respondents 1 and 2. The 3rd respondent contested
the suit till 2024 and when the case was listed for evidence
on 10.09.2024, the suit was not pressed. The 3 rd
respondent remained ex parte in R.C.P.No.12/2022, but the
delivery was resisted with his henchmen. Now, at the
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instance of the 3rd respondent, the present claimant has
filed the petition.
7. The Trial Court dismissed the Claim petition, finding that the
petitioners did not produce any document to substantiate
the contention that the petitioners are the tenants of
respondents 1 and 2. On filing the appeal before the First
Appellate Court by the petitioners, the same was dismissed
confirming the judgment and decree passed by the Trial
Court.
8. I heard the learned counsel for the appellant Adv.
Sri.Anupama Subramanian and the learned counsel for the
respondents 1 and 2 who appeared and opposed the
admission.
9. The learned counsel for respondents 1 and 2 submitted that
pursuant to the order of eviction in R.C.P. No.12/2022, the
delivery of the petition schedule property was effected on
19.03.2025, and hence the appeal has become infructuous.
On the other hand, the learned counsel for the appellant
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pressed for consideration of the appeal on the ground that
there is illegality in the orders passed by the Trial Court as
well as the First Appellate Court, and if the said orders are
set aside, the appellant is entitled to get restitution.
10. The learned counsel for the appellant's advanced
contentions are with reference to 'Annexure A' to 'Annexure
R' produced along with this appeal. The learned counsel for
the appellant invited my attention to the various documents
produced before the Execution Court as per List of
Documents, which is produced as Annexures F and D. The
learned counsel contended that though these documents
were produced before the Trial Court, none of these
documents were marked in evidence and considered by the
Trial Court.
11. I am of the view that the mere production of some
documents before the Execution Court is not sufficient to
mark the same in evidence. If the petitioners wanted to mark
those documents, it is for the petitioners to file necessary
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Evidence affidavit marking those documents and make
themselves available for cross examination. Petitioners have
not filed any Evidence Affidavit for marking and proving the
documents. It is seen from the Appendix of the Trial Court
order that nobody was examined, and no document was
marked in evidence. The Trial Court found that there is no
document or evidence to show that the claim petitioner is the
tenant of the respondents 1 and 2. Even though the claim
petitioner claimed that the rent of the premises was paid to
respondents 1 and 2, not even a single document was
produced before the Trial Court. Before this Court also no
document in this regard is produced. The appellant has no
right to produce documents as Annexures along with the
Appeal Memorandum. The appellant has not filed a petition
under Order 41 Rule 27 to accept additional evidence; This
Court can consider additional evidence in the appeal only if
the appellant files a petition under Order 41 Rule 27 and
satisfies the requirements in the said provision.
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12. Admittedly, the appellant herein is a Trust created by the
office bearer of the 3rd respondent/tenant along with some
other persons. The 3rd respondent/tenant is represented by a
person Kishan C.J. It is seen from Annexure A Trust Deed
produced along with the appeal that the very same Kishan
C.J. created the Trust along with two other persons. The
appellant obtained registration of the Trust using the building
number of the petition schedule building. On the basis of the
said registration, the appellant has obtained a bank account,
etc, in the name of the appellant, showing the address of the
petition schedule building. There is nothing on record to
prove that the respondents 1 and 2 landlords have any
connection with the Appellant Trust or with the alleged
present office bearers. It is clear that the Appellant Trust
started functioning in the petition scheduled building since
the office bearers of the 3rd respondent/tenant and the
present Appellant were one and the same.
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13. The Trial Court as well as the First Appellate Court correctly
appreciated the pleadings and dismissed the claim petition.
There is nothing wrong in the impugned orders. No
substantial question of law arises in this matter. Accordingly,
the Execution Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
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EX.SA NO. 4 OF 2025
PETITIONER ANNEXURES
ANNEXURE A A TRUE COPY OF THE TRUST DEED DATED
07.08.2020
ANNEXURE B A TRUE COPY OF R.C.P. NO. 12 OF 2022 WAS
FILED BY THE 1ST AND 2ND RESPONDENT
AGAINST THE 3RD RESPONDENT HEREIN ON
10.02.2022
ANNEXURE C A TRUE COPY OF THE ORDER IN R.C.P. NO.
12 OF 2022 DATED 22.07.2023 BY THE
HON'BLE MUNSIFF COURT
ANNEXURE D A TRUE COPY OF THE E.P. NO. 741 OF 2024
BEFORE THE PRINCIPAL MUNSIFF COURT,
THRISSUR
ANNEXURE E A TRUE COPY OF E.A. NO. 3070 OF 2024 IN
E.P. NO. 741 OF 2024 IN R.C.P. NO.
12/2022 BEFORE THE PRINCIPAL MUNSIFF
COURT, THRISSUR
ANNEXURE F A TRUE COPY OF THE DOCUMENT LIST FILED
ALONG WITH E.A. NO. 3070 OF 2024 IN E.P.
NO. 741 OF 2024 IN R.C.P. NO. 12/2022
BEFORE THE PRINCIPAL MUNSIFF COURT ON
22.10.2024
ANNEXURE G A TRUE COPY OF THE DOCUMENT LIST FILED
IN E.P. NO. 741 OF 2024 IN R.C.P. NO.
12/2022 BEFORE THE PRINCIPAL MUNSIFF
COURT ON 07.11.2024
ANNEXURE H A TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENTS 1 AND 2 IN E.A. NO. 3070 OF
2024 BEFORE HON'BLE PRINCIPAL MUNSIFF
COURT, THRISSUR
ANNEXURE I A TRUE COPY OF THE COUNTER FILED BY THE
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RESPONDENT NO. 3 IN E.A. NO. 3070 OF
2024 BEFORE HON'BLE PRINCIPAL MUNSIFF
COURT, THRISSUR
ANNEXURE J A TRUE COPY OF THE MINUTES OF THE
APPELLANT TRUST DATED 19.10.2024
ANNEXURE K A TRUE COPY OF THE PLAINT IN O.S. NO.
2170 OF 2024 FILED BEFORE THE HON'BLE
MUNSIFF COURT THRISSUR
ANNEXURE L A TRUE COPY OF THE COMMISSION REPORT
FILED IN O.S. NO. 2170 OF 2024 BEFORE
THE HON'BLE MUNSIFF COURT, THRISSUR
ANNEXURE M A CERTIFIED COPY OF THE ORDER IN E.A.
NO. 3070 OF 2024 IN E.P. NO. 741 OF 2024
IN R.C.P. NO. 12/2022 BEFORE THE
PRINCIPAL MUNSIFF COURT, THRISSUR DATED
22.11.2024
ANNEXURE N A TRUE COPY OF THE JUDGMENT IN O.P.
(R.C.) NO. 194 OF 2024 DATED 20.12.2024
ANNEXURE O A TRUE COPY OF THE APPEAL MEMORANDUM IN
A.S. NO. 7 OF 2025 FILED BEFORE THE
HON'BLE DISTRICT COURT THRISSUR
ANNEXURE P A TRUE COPY OF THE JUDGMENT IN O.P.
(R.C.) NO. 34 OF 2025 DATED 07.02.2025
BY THIS HON'BLE COURT
ANNEXURE Q A CERTIFIED COPY OF THE ORDER IN A.S NO.
7 OF 2025 DATED 11.03.2025 BY THE
HON'BLE ADDITIONAL DISTRICT JUDGE-III,
THRISSUR
ANNEXURE R A TRUE COPY OF THE SERIES OF POSTAL
COMMUNICATION THAT THE APPELLANT
RECEIVED FROM HDFC BANK
