IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 RSA.No. 73 of 2005() -------------------- AS.190/2004 of I ADDL. DISTRICT COURT, PALAKKAD OS.241/2003 of MUNSIFF COURT, ALATHUR .................... APPELLANTS/ RESPONDENTS/ DEFENDANTS : ------------------------------------------------------ 1. JASMI, AGED 31, D/O.LATE MOHAMMED SALI, HOUSE WIFE, RESIDING AT PITTUPARA, CHITHALI, COYALMANNAM AMSOM, ALTHUR TALUK, PALAKKAD DISTRICT. 2. SABEENA, AGED 29, D/O.LATE MOHAMMED SALI, HOUSE WIFE, RESIDING AT PITTUPARA, CHITHALI, COYALMANNAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 3. SAJITHA, AGED 25, D/O.LATE MOHAMMED SALI, HOUSE WIFE, RESIDING AT PITTUPARA, CHITHALI, COYALMANNAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR, SRI.P.B.KRISHNAN SRI.HARISH R. MENON RESPONDENT/ APPELLANT/ PLAINTIFF : ------------------------------------------ RADHAKRISHNAN, AGED 33, S/O.MAYAPPAN, RESIDING AT CHETTIKULAMBU, CHITHALI, COYALMANNAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRII.N.SUKUMAARAN(CAVEATOR), SRI.S.SHYAM, SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.LATHEESH SEBASTIAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.73 OF 2005 --------------------------------------------- Dated 7th April, 2011 JUDGMENT Defendants in O.S.241/2003 on the file of Munsiff court, Alathur are the appellants. Plaintiff is the respondent. The plaint schedule building admittedly belongs to the appellants. It was granted on lease in favour of the respondent on 21/6/1996 and he has been in possession of the building. The respondent would contend that he has been conducting a grocery shop as well as STD booth and while so, on 31/8/2003 when he came to the shop to open the shop room, it was found locked with three locks and it was done by the appellants. When the mother of the respondent tried to open the shop, she was attacked and a case was registered for RSA 73/05 2 causing hurt to her. Thereafter, respondent conducted business for three days. Appellants did not permit him to continue the business. On 5/9/2003 he lodged a complaint before Kozhalmannam police, but due to the influence no action was taken. Alleging that appellants are attempting to take forcible possession of the building, a decree for permanent prohibitory injunction was sought for. Appellants resisted the suit admitting the lease but contending that on 30/8/2003 respondent voluntarily vacated the plaint schedule building and handed over possession of the building to the appellants and executed Ext.B1 agreement and entrusted the computer, towards security of payment of the balance of arrears of rent of Rs.9,000/- and since 30/8/2003 respondent has not been in possession of the plaint schedule building and therefore, RSA 73/05 3 he is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, the respondent, PW2 his mother, DW1 the second appellant and DW2 one of the attesting witnesses to Ext.B1 and Exts.A1 to A17 and B1 dismissed the suit. Though Ex.A18 which was subsequently marked by the first appellate court, was produced, in view of the order passed in an application filed by the respondent earlier, directing the appellants to produce its original, holding that the appellants denied execution of that agreement, the document was not marked. Respondent challenged the judgment before Additional District Court, Palakkad in A.S.190/2004. Learned Additional District Judge on re- apprciation of the evidence found that the learned Munsiff should have marked Ext.A18 and marked the document. Learned Additional RSA 73/05 4 District Judge relying on the evidence of DW1 held that her admission shows that till the end of October, 2003 respondent has been conducting the STD booth and therefore, found that there could not have been a surrender of the building on 30/8/2003 shown in Ext.B1 and therefore, Ext.B1 cannot be accepted. Learned District Judge also found that when the respondent was admittedly a tenant of the building and when there is no surrender of the lease, he continues to be in possession of the building and he can be vacated only by due process of law. Hence on reversal of the decree of the trial court, learned Additional District Judge granted a decree restraining appellants from forcibly vacating the respondent from the plaint schedule building, otherwise than by due process of law. As it was established that a door was opened into the plaint schedule RSA 73/05 5 building, a mandatory injunction was granted to close that door. The appellants challenged the judgment in the second appeal. Second appeal was admitted formulating the following substantial questions of law. 1) It is not the decision of the lower appellate court vitiated on account of the non-consideration of the admissions made by the plaintiff in his oral testimony regarding th possession of the disputed premises ? 2) Whether on the facts and in the circumstances of the case the plaintiff has adduced legally acceptable evidence to establish his possession on the date of suit ? 3) Is not the case of surrender of the premises RSA 73/05 6 established by the attendant circumstances and broad probabilities of the case ? 4) Is the lower appellate court justified in marking and relying on Ext.A18 at the appellate stage ? 5) Has not the lower appellate court acted illegally in granting the relief of mandatory injunction without pleading, proof prayer or court fee ? 3. Learned Senior counsel appearing for the appellants and learned counsel appearing for the respondent were heard. 4. Learned Senior counsel pointed out that though Exts.A1 to A17 were marked by the trial court, Ext.A1 telephone bill is for the period from 16/8/2003 to 31/8/2003 and Ext.A2 is the subsequent bill for the period from 16/10/2003 to 31/10/2003 and Exts.A2 and A3 RSA 73/05 7 bills show that there was no reading of the calls were recorded which establish that the STD booth was not functioning and in such circumstances, the wrong admission made by DW1 cannot be a ground to discard Ext.B1 or to reject the case of the appellants that there was a surrender. It was pointed out that the telephone bills are in the names of the sister of the respondent and in Ext.A2 bill there is a correction in the address and therefore, the bill subsequent to Ext.A1 and prior to Ext.A2, there was reading of the metered calls and it could be in respect of the STD booth run by the sister of the respondent at some other place. Therefore, based on the said telephone bill, it cannot be found that respondent continued possession of the building subsequent to 30/8/2003. Learned Senior counsel also pointed out that all the rent RSA 73/05 8 receipts produced by the respondent relate to earlier period to establish possession of the building subsequent to surrender on 30/8/2003 and fact that respondent did not take out a commission on the date of filing of the suit or immediately thereafter establish that he has not been in possession of the property and therefore, first appellate court was not justified in granting the decree. 5. Learned counsel appearing for the respondent argued that execution of Ext.B1 was not proved and though DW2, the attesting witness was examined, his evidence cannot be relied on and if the evidence of DW2 is to be accepted the presence of the second executant of Ext.B1, Sarojini is disproved and DW2 was not in a position to say who had written Ext.B1 and his version was that it was written and brought by the respondent and in such RSA 73/05 9 circumstances, evidence cannot be relied on. Learned counsel also pointed out that when the case of the appellants is that respondent, the tenant surrendered the building, it cannot be believed that he would entrust his computer as security for payment of arrears of rent of Rs.9,000/- and when the evidence of DW1 shows that rate of rent is Rs.300/- per month and evidence show that the rent was in arrears for eight years. Therefore, there cannot be a liability of Rs.9,000/- as arrears of rent to be discharged for which computer is to be furnished as security and first appellate court rightly found that respondent did not surrender the building and he continues to be in possession of the building and therefore, the appeal is only to be dismissed. 6. Fact that respondent is a tenant of the plaint schedule building is not RSA 73/05 10 disputed. It is also not disputed that respondent was conducting grocery shop and STD booth in the shop building. The case of the appellants is only that while the respondent was continuing as tenant, on 30/8/2003 he voluntarily surrendered the building and agreed to pay Rs.9,000/- and furnished his computer as security for its payment and executed Ext.B1 agreement. Execution of Ext.B1 agreement is denied by the respondent. Respondent in the plaint also contended that even though he filed a complaint before the police, no action was taken by the police under the influence of the appellants and he was called to the police station and was made to execute the agreement undertaking to surrender possession of the building and Ext.A18 is the copy of that agreement which is vitiated, as it was not voluntarily executed. Appellants contended that RSA 73/05 11 they are not in possession of original of Ext.A18 and they did not execute Ext.A18. Though learned Munsiff did not mark Ext.A18, it was marked by the first appellate court. Even if Ext.A18 cannot be relied on, as it is a copy of an agreement, which is denied by the appellants, it will not affect the case or the decision taken by the first appellate court. As rightly found by the first appellate court, once it is proved that respondent is the tenant of plaint schedule building, unless there is surrender of the tenancy right by the tenant and handing over possession of the building, he is to be taken as in possession of the building, as claimed by the respondent. Therefore, the crucial question is whether there was a surrender evidenced by Ext.B1. 7. It is not the case of the appellants that the lease was granted in favour of the RSA 73/05 12 respondent and his mother. On the other hand, it is the specific case of the respondent and the appellants that the lease was granted only in favour of the respondent. Though rental agreement was not marked, it is seen that along with the plaint, the document was produced which shows that the lease was in favour of the respondent. Therefore, if there is a valid surrender of the lease that could only be the surrender by the respondent/tenant and what is to be surrendered is the lease hold right obtained under the rental arrangement dated 21/6/1996. Strangely, Ext.B1 shows that what was surrendered thereunder is a tenancy right jointly obtained by the respondent and his mother, Sarojini, who is one of the signatories to Ext.B1. When there was no lease in favour of Sarojini, the mother, there cannot be a surrender of a lease by Sarojini either RSA 73/05 13 alone or jointly. It is not explained at the time of evidence as to how the lease was surrendered by Sarojini. Whatever it be, the question is whether it is proved that Ext.B1 was executed by the respondent. When execution of Ext.B1 is denied DW2, the witness to Ext.B1 was examined to prove Ext.B1. On going through the evidence of DW2 it is clear that his evidence cannot be relied on. DW2 has given evidence that Ext.B1 was written and brought by the respondent and he was asked to be a witness by the husband of DW1. When DW2 was cross examined further, his case is that at the time of execution, respondent and his son apart from the appellants were present. There is no case that the mother of the respondent was present. When Ext.B1 shows that mother has also executed Ext.B1, evidence of DW2 establishes that, there was no such execution. RSA 73/05 14 More over, if the valuable tenancy right was voluntarily surrendered by the tenant as claimed by the appellants, it cannot be believed that he would furnish security in the form of a computer to the landlords to discharge the arrears of rent. In the normal course, when the tenancy right is surrendered, the tenant will bargain and get the arrears of rent wiped out. When the entire evidence is appreciated in the proper perspective, it can only be found that respondent did not surrender the plaint schedule building as evidenced by Ext.B1 and he did not execute Ext.B1. If that be the case, as rightly found by the first appellate court respondent continues to be a tenant of the building. Added to this, evidence of DW1 also shows that respondent continued to run STD booth subsequent to 30/8/2003. Though learned Senior counsel submitted that it could RSA 73/05 15 only be with the permission of the appellants as some time is required to surrender the STD facilities, there is no such case or evidence. In such circumstances, I find no reason to interfere with the findings of the first appellate court. Appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE. uj.