IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 RSA.NO. 870 OF 2009() --------------------- AS.6/2003 OF ADDL. DISTRICT COURT-II, MAVELIKKARA OS.173/1999 OF MUNSIFF COURT, MAVELIKKARA .................... APPELLANT/APPELLANT/DEFENDANT ---------------------------------- BHASKARAN, PRASAD HOTEL, CHETTIKULANGARA, VALLIYAYAVATH HOUSE, EREZHA SOUTH, CHETTIKULANGARA P.O. BY ADV. SRI.R.PADMAKUMAR SRI.R.T.PRADEEP RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- LALITHA RAGHUNATHAN, NALINA 45, VRINDAVANAM, PATTOM, THIRUVANANTHAPURAM. ADV. SRI.RASHEED C.NOORANAD FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.870 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of November, 2009 J U D G M E N T ---------------------- This Second Appeal arises from judgment and decree of learned Additional District Judge, Mavelikkara in A.S. No.6 of 2003 confirming the decree for recovery of rent arrears passed by learned Munsiff, Mavelikkara in O.S. No.173 of 1999. Respondent instituted the suit for eviction of the appellant and recovery of arrears of rent alleging that appellant is a tenant of the shop rooms described in the plaint schedule. According to the respondent entrustment was on condition of payment of rent of Rs.3/- per day for room No.146 and Rs.4/- per day for room No.152. Respondent claimed that rent is in arrears from January, 1998. Terminating tenancy and demanding rent arrears at the above rate from January, 1998 onwards respondent issued notice to the appellant on 27.9.1999. Appellant contended that notice under Section 106 of the Transfer of Property Act is not valid and claimed that rental arrangement, orally was from January, 1979 onwards for a monthly rent of Rs.3/- for both the rooms together to be paid on or before 16th of every month. He contended that there is no rent arrears. Learned Munsiff refused to grant eviction but decreed the suit in part allowing respondent to realise rent arrears to the tune of R.S.A. NO.870 of 2009 -: 2 :- Rs.3,220/- with interest. First appellate court confirmed that decree and hence the Second Appeal urging by way of substantial question of law whether in the absence of evidence regarding daily rent courts below were justified in granting decree as prayed for. Learned counsel contends that finding entered by the courts below is not correct. 2. There is no document produced by either side to prove the rental arrangement. Concededly it was oral. Father-in-law of respondent gave evidence as P.W.1 and testified to the case of respondent. P.W2 claimed to be the collection agent of respondent. He claimed that he was collecting rent from the appellant at the rate claimed by the respondent. According to him rent is in arrears from 1.1.1998. Appellant gave contra evidence as D.W1. He also claimed that he replaced the thatched roof of the building with tin sheet and incurred expenses. Learned Munsiff found that case of respondent is proved by the evidence of P.Ws.1 and 2. It is also found that there is no evidence to show that appellant incurred expenses for replacement of the roof. It is accordingly that decree was grated by the trial court. First appellate court concurred. 3. Finding of trial court as to the rate of rent and arrears is based on appreciation of evidence produced by both sides. When the finding of the trial court rests on oral evidence even the first appellate R.S.A. NO.870 of 2009 -: 3 :- court could interfere only if there is some special feature in the oral evidence which escaped notice of the trial court and which if considered would tilt the decision in favour of the appellant. No such situation arose on the facts of the case. Though appellant claimed that he has paid the rent, plea of discharge is not proved. It is in the above circumstances that learned Munsiff granted decree for rent arrears which was confirmed by the first appellate court. No substantial question of law is involved in the Second Appeal requiring its admission and notice to respondent. The Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.870 of 2009 -: 4 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. 870 OF 2009 =================== J U D G M E N T 4TH NOVEMBER, 2009