IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 SA.No. 657 of 1996() -------------------- AS.18/1993 of SUB COURT, KASARAGOD OS.138/1989 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANTS/PLAINTIFFS: ---------------------------- 1. K.HARISCHANDRA, S/O.VASUDEVA, KORAKUDA, NAGARA KATTE, TALANGARA VILLAGE, KASARAGODE. 2. NAGESH, -DO- -DO- 3. SUSHEELA, -DO- -DO- 4. GANESHA, -DO- -DO- 5. PRAVEENA, -DO- -DO- 6. DINESHA, -DO- -DO- BY ADV. MR.V.V.ASOKAN MS.JIJIMOL J.VADAKKEN RESPONDENTS/DEFENDANTS: -------------------------------- 1. C.H.BHASKARA, S/O.VEERAPPA, NAGARAKETTE, THALANGARA, KASARAGODE. 2. SMT.AMBA BAI, W/O.NARAYANA, KALLAI, NEAR RAGAVENDRA SWAMI MUT, PUTHUR, KARNATAKA. ADV. MR.U.P.KUNIKULLAYA MR.K.G.GOURI SANKAR RAI FOR R1,2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 657 of 1996 ORDER ON C.M.P.NO.1418 OF 1996 IN S.A.NO.657/1996 DISMISSED. 18.5.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------- S.A.No.657 of 1996 --------------------- Dated this the 18th day of May, 2010 J U D G M E N T Appellants are plaintiffs 2 to 7 in O.S.No.138 of 1999 on the file of the Munsiff Court, Kasaragode. The first plaintiff is the father of the plaintiffs 2 to 7 who died during the pendency of the appeal before the lower appellate court. The suit was filed by the plaintiffs for recovery of possession of the plaint schedule house from the defendants on the strength on their title. The first defendant alone contested the suit. The first defendant contended that he is a tenant and that he continues in possession as a building tenant, entitled to protection under Kerala Buildings (Lease and Rent Control) Act, 1965. He also contended that he is a kudikidappukaran in respect of the house, entitled to protection under Kerala Land Reforms Act. In the light of the contentions raised and the provisions contained under the Land Reforms Act, the trial court referred the matter to the Land Tribunal for a finding regarding kudikidappu claim. The kudikidappu question was adjudicated by the parties before the Land Tribunal S.A.No.657 of 1996 2 concerned. The Land Tribunal held that the contesting defendant is not a kudikidappukaran and the reference was answered accordingly. The further question whether the first defendant is a tenant under the Kerala Buildings (Lease and Rent Control) Act was considered by the trial court. The trial court held that the first defendant in the suit is a tenant and therefore the plaintiffs have to approach the Rent Control Court for eviction. The trial court dismissed the suit. The first defendant did not challenge the finding against him regarding the claim of kudikidappu. The plaintiffs preferred an appeal before the lower appellate court challenging the finding of the trial court which led to the dismissal of the suit. The lower appellate court held that the plaintiffs are the title holders of the property and further held that the contesting defendant is a building tenant and therefore the plaintiffs have to seek remedy under the Kerala Buildings (Lease and Rent Control) Act. The appeal preferred by the plaintiffs was dismissed by the lower appellate court. Aggrieved by the decree and judgment of the lower appellate court confirming the decree and judgment of the trial court, the plaintiffs have preferred the present appeal. Parties are hereinafter referred to S.A.No.657 of 1996 3 as the plaintiffs and defendants as arrayed in the suit. 2. Heard the counsel on both sides and perused the records. 3. As I said earlier, two contentions were raised by the first defendant before the court below. One is regarding the claim of kudikidappu. The question as to whether the first defendant is a kudikidappukaran as claimed by him was referred to the Land Tribunal and the same was found against the first defendant. The finding was accepted by the trial court. The first defendant did not challenge the said finding and therefore it has become final. Nevertheless, the trial court held that the plaintiffs have not established their title to the plaint schedule building. The lower appellate court corrected the said finding and held that the plaintiffs are the title holders of the plaint schedule building. The lower appellate court rightly held that the trial court wrongly cast the burden on the plaintiffs. The lower appellate court further held that in view of the admission of the title of the plaintiffs, burden was on the contesting defendant to prove his tenancy claim. 4. Admittedly, the defendants were in possession of the S.A.No.657 of 1996 4 plaint schedule building for the last more than 30 years. The parties are close relatives. The father of the first defendant is the maternal uncle of the first plaintiff. The trial court observed that the plaintiffs have not produced any documents to show that the first defendant is the licensee of the plaint schedule building and further observed that to consider the issue the only material before the court is the testimony of PW1 and DW1. Considering the fact that the first defendant and his father were residing in the plaint schedule building for about 30 years and wrongly casting the burden on the plaintiffs, the trial court held that the first defendant is a tenant entitled to protection under the provisions of the Kerala Building (Lease and Rent Control) Act and therefore the suit for recovery of possession is not maintainable. 5. The lower appellate court also discussed the very same set of evidence adduced by the parties. The lower appellate court rightly held that the plaintiffs have proved the title of the plaint schedule building and they are therefore entitled to recovery of possession if it is found that the defendants are not lessees. The lower appellate court held that the burden was S.A.No.657 of 1996 5 no doubt on the contesting defendant to prove his tenancy. The court further examined the question whether the first defendant has proved the claim of tenancy. The lower appellate court is also carried away by the fact that the contesting defendant is in possession of the plaint schedule building for the last more than 30 years. Admittedly, the first defendant did not produce any rent receipts to prove that he is a tenant of the plaintiffs. No other materials are produced by the contesting defendant to support his stand that he is a lessee of the building. The stand of the contesting defendant without proper and sufficient proof was accepted by the lower appellate court and the learned judge held that the various circumstances discussed by him satisfactorily discharged the burden that they are statutory tenants apart from the fact that the contesting defendant is in possession of the plaint schedule building for last more than 30 years. No other materials are produced by the first defendant in support of their claim for tenancy. Therefore, there is no justification for the lower appellate court to say that the various circumstances discussed by him too satisfactorily discharge the burden of the contesting defendant. Even the basic materials are not produced S.A.No.657 of 1996 6 by the contesting defendant to support his claim. The trial court as well as lower appellate court failed to appreciate the evidence on record properly. The evidence on record is not sufficient enough to arrive at a conclusion that the contesting defendant is a tenant. Therefore, there is no justification for the appellate court to find that the relationship is that of landlord and tenant governed by Act 2 of 1965 and therefore the defendants cannot be evicted except under due process of law under Act 2 of 1965. 6. The parties are related to each other. The contesting defendant failed to discharge his burden and produced materials in support of his claim. There is no material to conclude and found that the contesting defendant is a tenant. The findings recorded by the court below are vitiated. There is failure on the part of the contesting defendant to prove his tenancy claim. In the said circumstances, the plaintiffs are entitled to a decree of recovery of possession. 7. In the result, the decree and judgment passed by the lower appellate court is set aside. A decree is passed directing the defendants to surrender vacant possession of plaint A schedule building. In case of failure, the plaintiffs are entitled to S.A.No.657 of 1996 7 take delivery of the plaint schedule building through process of court. The defendants are directed to pay the plaintiffs the future mesne profits at the rate of Rs.100/- per month from the date of suit till the date of delivery of plaint A schedule building. There will be no order as to costs. The second appeal is disposed of as above. HARUN-UL-RASHID, JUDGE. bkn/-