IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 Ex.SA.No. 12 of 2008 ---------------------------------- AS.56/2007 of SUB COURT, VADAKARA RCP.79/2005 of MUNSIFF COURT, NADAPURAM (EA.90/2007, EP.15/2007) .................... APPELANTS/APPELANTS/CLAIM PETITIONERS: 1. MADHAVI AMMA, W/O.GOPALAN NAMBIAR, MADHAVI NILAYAM, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK. 2. RAMAKRISHNAN, S/O.GOPALAN NAMBIAR, AYYARKOTHIPOYIL, DO. DO. 3. SUKUMARAN, S/O.GOPALAN NAMBIAR, MADHAVI NILAYAM, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK. 4. AMBIKA, D/O. GOPALAN NAMBIAR, NAGAPARAMBATH, MUYIPPOTH AMSOM DESOM, KOYILANDY TALUK. 5. SOBANA, D/O. GOPALAN NAMBIAR, THERUVATH, KUTHALI AMSOM DESOM, DO. BY ADV. SRI.T.KRISHNANUNNI (SR.) SRI.K.A.SALIL NARAYANAN RESPONDENTS/RESPONDENTS: 1. KURICHANIYIL CLARAMMA, W/O.JOSEPH, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK. 2. V.K.MADHU, S/O.GOPALAN NAMBIAR VALAYAKOTTUMMAL, DO. DO. BY ADV.SRI.R.K.MURALIDHARAN (CAVEATOR) & R1 THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Ex.S.A.No. 12 of 2008 --------------------------- JUDGMENT This Execution Second Appeal is filed by the claim petitioners, who advanced claim to the tenanted premises, from which eviction was ordered as against the second respondent in R.C.P.No.79/05 on the file of the Munsiff's Court, Nadapuram, as their claim petition, resisting eviction, was dismissed by the execution court and the appeal filed therefrom was also dismissed by the first appellate court. The first respondent is the petitioner/decree holder in R.C.P.No.79/05 and the second respondent is the counter petitioner in the said rent control petition, against whom is the order of eviction passed in the rent control petition. 2. The short facts which are to be stated for the purpose of disposal of this case are that the appellants, who were the petitioners in E.A.No. 90/07 in E.P.No.15/07 in R.C.P.No.79/05, are the EXSA 12/08 2 wife and children of Gopalan Nambiar, who was admittedly the tenant under the first respondent. The second respondent is also one of the sons of Gopalan Nambiar. A registered lease deed was executed between respondents 1 and 2 on 28.7.1994 as per Document No.1658/94 of Sub Registry Office, Kavilumpara. 3. The case of the appellants is that the first respondent filed rent control petition against the second respondent without impleading the other legal heirs of Gopalan Nambiar, when, actually, the tenancy in favour of Gopalan Nambiar under Exhibit A-11 rent deed of 1974 had not been terminated or surrendered. It is also the admitted case that Gopalan Nambiar expired on 29.6.2003. There is no case for the appellants that there was any fraud or collusion between the first respondent/landlady and the second respondent/the son of Gopalan Nambiar, who entered into a fresh rental deed with the first respondent in 1994. It is further seen that R.C.P. EXSA 12/08 3 No.79/05 was hotly contested by the second respondent resisting eviction. When eviction was ordered allowing the rent control petition, the second respondent filed appeal before the Rent Control Appellate Authority, as R.C.A.No.116/06, but that also was dismissed upholding the correctness of the order of eviction passed by the Rent Control Court. Thereafter, the matter was taken up in revision before this Court, filing R.C.R.No.37/07 and that also was dismissed. It was in execution of the order in the said rent control petition, which was filed by the first respondent for eviction and hotly contested and final verdict was against the second respondent, that the appellants, as petitioners, filed E.A.No.90/07, coming to the rescue of the second respondent resisting eviction. 4. The execution court as well as the first appellate court have discussed the evidence adduced in the pleadings threadbare and have come to the EXSA 12/08 4 conclusion that there is surrender of leasehold by Gopalan Nambiar and it is thereafter that a fresh rent deed was entered into between respondents 1 and 2, who are respectively, the landlady and one of the sons of the tenant Gopalan Nambiar and further that the said second respondent was thereafter conducting business in the scheduled building obtaining licence in his favour. It was also observed that going by the assessment registers produced, which are maintained by the Kavilumpara Grama Panchayat, it is evidenced that tenant is shown as the second respondent after the execution of fresh rent deed, though the tenant was shown as Gopalan Nambiar till then. Those are official records to disbelieve which there was absolutely no circumstance. Both the courts below have also found that from out of the documents produced on the side of the appellants, such of those documents, which connect Gopalan Nambiar with the scheduled building, are all documents which EXSA 12/08 5 have come into being prior to execution of fresh rent deed by the second respondent in favour of the first respondent and not subsequent thereto. On merits, I see absolutely no reason to come to a different finding that Gopalan Nambiar had not surrendered the tenancy in his favour and that fresh rent deed had not been entered into between respondents 1 and 2. 5. The contention advanced on the basis of the evidence tendered by the witness examined on the side of the appellants in the court below that Ramakrishnan/the second appellant, was seen in the scheduled shop room is not of much relevance as Ramakrishnan is none other than the brother of the second respondent and son of Gopalan Nambiar and there was nothing wrong in Ramakrishnan having been found on some occasions within the shop room. The courts below have also found that Ramakrishnan is one who is conducting hotel in another building. The contention that vital issue as to whether EXSA 12/08 6 Gopalan Nambiar had surrendered the tenancy had not been framed as an issue by the execution court and the appellate court, which framed such an issue, ought to have remitted the case back to the execution court for consideration of that issue afresh, is bereft of any merit for the reason that the parties met at the trial knowing fully well that what they were to answer is the question as to whether Gopalan Nambiar had at least impliedly surrendered the tenancy to the first respondent so as to give room for a fresh tenancy being entered into between respondents 1 and 2. 6. The further argument that certain admissions were made by the husband of the first respondent, who was examined before the Rent Control Court, which will support the case of the appellants, cannot be countenanced, as the alleged admissions, if at all, any made by the husband of the first respondent, have not been confronted to him in this proceedings, citing him as a witness. Thus, there EXSA 12/08 7 is absolutely no merit in this Execution Second Appeal and there is no substantial question of law arising for consideration in this appeal as is attempted to be made out. This appeal, in the circumstances, deserves only to be dismissed in limine, refusing admission. 7. Finally, it is urged by the counsel for the appellants that six months time be granted to the appellants to vacate and surrender possession of the scheduled building to the respondents. In the circumstances of the case and when it is found that the second respondent is the tenant, the request made on behalf of the appellants' counsel cannot be allowed. In the result, refusing admission, I dismiss this Execution First Appeal in limine. 26th June, 2008 (K.P.Balachandran, Judge) tkv