IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 RSA.No. 632 of 2004() --------------------- AS.404/2001 & CROSS APPEAL of I ADDL.DISTRICT COURT, THRISSUR OS.2858/1998 of III ADDL. M.C.,THRISSUR .................... APPELLANTS/APPELLANTS/DEFENDANTS/RESPONDENTS IN CROSS APPEAL : ------------------------------------------------ 1. ELIZEBETH, W/O.KADUKKAMOOTTIL LATE JOSEPH, PULLOOKKARA DESOM, NADATHARA VILLAGE, THRISSUR TALUK. 2. SUNNY, S/O.KADUKKAMMOOTTIL LATE JOSEPH, PULLIOIKKARA DESOM, NADATHARA VILLAGE, THRISSUR TALUK. 3. KUNHANAMMA ALIAS ANNAMMA, W/O.KADUKKAMOOTTIL SUNNY, PULLOOKKARA DESOM, NADATHARA VILLAGE, THRISSUR TALUK. 4. AMBILI, D/O.KADUKKAMOOTTIL SUNNY, PULLOOKKARA DESOM, NADATHARA VILLAGE, THRISSUR TALUK. 5. ANJALI, D/O.KADUKKAMOOTTIL SUNNY, PULLOOKKARA DESOM, NADATHARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENTS/ RESPONDENTS/PLAINTIFF/APPELLANT IN CROSS APPEAL: --------------------------------------------------------------------------------- 1. CLEMANT, S/O.PURAKKAT PUTHENPURAYIL DEVASSY, IKYA NAGAR DESOM, NADATHARA VILLAGE, THRISSUR TALUK, THRISSUR DIST. 2. SHERLI, D/O.PURAKKAT PUTHENPURAYIL CLEMANT, IKYA NAGAR DESOM, NADATHARA VILLAGE, THRISSUR TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: uj. M.SASIDHARAN NAMBIAR, J ........................................... RSA No. 632 of 2004 ............................................ DATED THIS THE 10th DAY OF AUGUST, 2011 JUDGMENT Defendants in O.S.2858 of 1998 on the file of Munsiff Court, Thrissur are the appellants. Respondents are the plaintiffs. Respondents instituted the suit seeking a decree for mandatory injunction directing the appellants to re-construct the plaint B schedule building and to hand it over to the respondents and for paying damages at the rate of Rs.2000/- per month till the building is re-constructed and handed over and for realisation of Rs.35,172/- being the value of the articles lost from the plaint B schedule building at the time of its destruction. Plaint A and B schedule properties admittedly originally belonged to the plaintiffs. They under Ext.B1 and B2 sale deeds respectively executed in 1991 and 1992 RSA No.632/2004 2 transferred the property in favour of the first appellant. Respondents would contend that though the property was assigned under Ext.B1 and B2, they continued their residence in the plaint A schedule building. In 1992, they constructed plaint B schedule lean to attached to the plaint A schedule residential building spending their own money. Though they are the owners of the lean to, they agreed to pay a monthly rent of Rs.10/- to the first appellant. Receipt of rent was being acknowledged in a pass book. It was alleged that appellants were attempting to get the respondents evicted from the plaint B schedule lean to. As they are doing business therein, respondents refused to surrender possession of the plaint schedule building. In 1997, the front portion of the lean to was demolished by the appellants. A complaint was filed by respondents before the police. As directed by the police, the demolished portion was re- constructed. Respondents have been doing business in the plaint B schedule building. It was contended that on 2.8.1998, when respondents RSA No.632/2004 3 removed a portion of the cadjan leaves of the lean to for maintenance, it was objected to by the appellants. A complaint was filed before the police on 5.8.1998. When police inspected the property, though they were satisfied no effective steps were taken. Another complaint was filed on 6.8.1998 before the C.I of Police, Olloor. Though police men were sent to the site, under the influence of the appellants they did not take any steps. It is alleged that on 13.8.1998, the appellants forcibly demolished plaint B schedule lean to and also took away the articles stored there for sale valued at Rs.18572/- and a complaint was filed before the police on 2.9.1998. Police has registered a case. Appellants have no right to demolish the building. A decree for mandatory injunction was sought to reconstruct the plaint B schedule lean to and a decree for realisation of Rs.18572/- being the value of the articles and Rs.7600/- being the value of the furniture. Appellants also sought a decree for realisation of Rs.2000/- per month, as respondents could not do the business and lost the RSA No.632/2004 4 income from the business. 2.Respondents resisted the suit contending that under Ext.B1 and B2 respondents have transferred entire right in favour of the appellants and possession of the plaint A and B schedule properties were also obtained by the appellants and plaint B schedule lean to was not constructed by the respondents and respondents have no right over it and it was not granted on lease to them and it was not demolished by the appellants as alleged and therefore respondents are not entitled to the decree sought for. 3. Learned Munsiff on the evidence of Pws. 1 to 5, Dws.1 and 2, CW1 and Exts.A1 to A20, B1 to B5 (a), X1 and C1 and C1(a) granted a decree in favour of the respondents directing the appellants to restore plaint B schedule shop room to its original position and handover the same within thirty days to the respondents. Respondents were also permitted to realise Rs.2000/- per month from the appellants till the plaint schedule shop room is restored to the original position. They were RSA No.632/2004 5 also granted a decree to realise Rs.35,172/- as damages with interest. Appellants challenged the judgment before the District Court, Thrissur in A.S.404/2001. Respondents preferred a Cross Objection. Learned Additional District Judge on reappreciation of the evidence found that the evidence establish that plaint B schedule lean to was in existence and respondents have been in possession of the building till it was demolished. Learned Additional District Judge confirmed the findings of the learned Munsiff that in the absence of any other explanation, the case pleaded by the respondents that they constructed the lean to and they are its tenants and by the destruction of the shop room they lost their livelihood and also lost the articles and hence confirmed the decree with the modification that respondents are only entitled to realise Rs.1000/- per month and Rs.10,000/- as damages. The defendants have preferred the appeal challenging the decree and judgment. 4. The appeal was admitted formulating the RSA No.632/2004 6 following substantial questions of law. (a) When Ext.B2 and A8 do not contain any recital to the effect that the plaintiffs were possessing or occupying the building in A schedule property or B schedule shop room, were the courts below correct in relying on other evidence to find that the plaintiffs were occupying the residential house in A schedule and B schedule shop room in view of the prohibition contained in Section 92 of the Indian Evidence Act which tabooes adducing of any oral or documentary evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of Ext.B2 and B8? RSA No.632/2004 7 (b) In view of Ext.B5 and B5(a) and Ext.A1 and A3, were the courts below correct in finding that the plaintiffs were in fact occupying the building in A schedule and also occupying and doing business in B schedule shop building? (c)When the date of 4.8.1998 as shown as the date of arising of the cause of action for the suit on which date the B schedule shop room was allegedly demolished and when Ext.A11 the complaint filed by the 1st plaintiff on 6.8.1998 does not contain any allegation of demolition, were the courts below correct in finding that the B schedule was demolished by the defendants? (d) When it is proved that the RSA No.632/2004 8 1st plaintiff had committed fraud when he executed Ext.B2 document by suppressing the creation of mortgage of the property sold by Ext.B2 to a Finance Company and because of this fraud played the defendants were put loss, were the courts below correct in accepting the tainted evidence adduced by the plaintiffs? (e) When no reliable data was produced to show the income from the alleged business conducted in B schedule shop room, were the courts below correct in finding that there was income from the business? Was the lower appellate court correct in awarding interest at 6% per annum on the estimated income of Rs.1000/- per month, RSA No.632/2004 9 allowing the Cross Appeal? (f) When the case of the plaintiffs is that B schedule shop room in A schedule property was demolished in toto and when its admitted that A schedule property belongs to the defendants, were the courts below correct in directing the defendants to construct a room in the same dimension as that of B schedule and hand over the same to the plaintiffs? Is not a building tenancy comes to an end when the building is destroyed? (g) When the area where B schedule shop room exists is brought under the purview of Building Lease and Rent Control Act and to that area the provision of the self-contained RSA No.632/2004 10 Rent Control Act alone are applicable, can the provisions in the Transfer of Property Act be invoked? 5. Though notice was served on the respondents, they did not appear personally or through a counsel. 6. Learned counsel appearing for the appellants was heard and the records were produced. 7. Even according to the respondents, they executed Exts.B1 and B2 sale deeds whereunder their entire right over the properties covered thereunder were transferred in favour of the appellants in 1991-92 respectively. As rightly pointed out by the learned counsel appearing for the appellants Exts.B1 and B2 establish that the properties covered under Exts.B1 and B2 were transferred absolutely to the appellants and they parted with their possession and appellants obtained possession. Though no relief is sought for in respect of the plaint A schedule building and a reading of the plaint may appear that respondents RSA No.632/2004 11 are in possession of the plaint A schedule building, when the evidence was recorded, first respondent as PW1 unambiguously admitted that plaint A schedule building was not in their possession from 1994 onwards. Suit was instituted only on 21.12.1998. The allegation in the plaint is that plaint B schedule lean to, attached to the plaint A schedule building, was constructed by the respondents spending their own money and since then they have been in possession of the lean to from March 1993 onwards. Therefore even as per the allegations in the plaint the lean to was constructed in March 1993, subsequent to Exts.B1 and B2 assignment deeds. There is no allegation in the plaint that the land over which the plaint B schedule lean to constructed was obtained by the respondents from the appellants either under lease or by any other arrangement. Admittedly subsequent to Exts.B1 and B2, appellants are the owners of the property. There is also no case that any permission was sought for from the appellants to construct the lean to. Normally, first respondent RSA No.632/2004 12 cannot cultivate any structure in the properties alienated under Ext.B1 and B2, subsequent to execution of Exts.B1 and B2. But strangely it was further contended that after completing the construction, respondents started paying a monthly rent of Rs.10/- to the appellants and they used to get acknowledgement for receipt of the rent in a passbook. But no such passbook was produced before the courts below. Learned Munsiff and the learned District Judge relied on Ext.A1 and A2 voters list and Ext.A3 building tax assessment register obtained from the Panchayat to show that the plaint B schedule lean to was in existence and held that as seen in Ext.A3 first respondent was shown as the owner of the lean to. Relying on Ext.A16 the charge sheet submitted in C.C.164/2000 as well as Ext.A12 FIR and Ext.A20, the deposition of the third appellant, when she was examined in C.C.362/1998, it was held that respondents were tenants of the plaint B schedule building and therefore appellants have no right to demolish the building and in spite of the demolition the RSA No.632/2004 13 tenancy continues and granted a decree for mandatory injunction. 8. Courts below unfortunately omitted to take note of the fact that respondents are admitting that under Exts.B1 and B2 they assigned the entire property in favour of the appellants. Therefore in the absence of a case that there was a lease of land with permission to construct a lean to, respondents could not have constructed a building subsequent to Ext.B1 and B2 in any portion of the property covered thereunder. When under Exts.B1 and B2 the properties were transferred by the respondents, even if they were the previous owners of the land, they have no right to construct any lean to therein after transferring the properties under Ext.B1 and B2. When respondents have no case that there was a lease of land or that any permission was granted to construct a lean to, in the property belonging to the appellants under Ext.B1 and B2, it cannot be believed that respondents constructed a lean to and that too they have agreed to pay the rent to the appellants. RSA No.632/2004 14 When case of respondents is that the plaint B schedule building was constructed and the building belongs to them, it cannot be believed that respondent started paying rent to the appellant for their own building. It is to be born in mind that appellants have no case that plaint A schedule building also form part of the lease. If there was a lease in respect of plaint B schedule building , which is attached to plaint A schedule building, there would have been a lease in respect of the plaint A schedule building also as by execution of Exts.B1 and B2 respondents divested their right in the property. In such circumstances without acceptable evidence, on surmises, courts below should not have found that there was a lease in favour of the respondents in respect of plaint B schedule building and the respondents are tenants in respect of the lean to. Though Ext.A20 copy of the deposition in C.C.362/1998 wherein the third appellant was examined as a prosecution witness was relied on by the courts below, the evidence of the third appellant as CW1 clarifies the ambiguity RSA No.632/2004 15 created in Ext.A20. In such circumstances based on Ext.A20 it is not possible to hold that appellants have admitted that respondents are the tenants of the plaint schedule building. 9. When respondents did not establish that they are the tenants of the plaint B schedule building and there was a lease of the plaint B schedule building, as claimed by them, a decree for mandatory injunction cannot be granted in favour of the respondents to restore the building which was demolished earlier and to handover the same to the respondents. Similarly when there is no acceptable evidence to prove that respondents are tenants of the plaint B schedule lean to, a decree for damages at the rate of Rs.1000/- as modified by the first appellate court also should not have been granted. Similar is the case with the damages. In the absence of evidence to prove the damages the first appellate court should not have awarded a damages at Rs.10,000/-. In such circumstances the decree granted by the learned Munsiff as modified by the learned District Judge can only be set aside. RSA No.632/2004 16 The appeal is allowed. The decree in O.S.2858/1998 on the file of Munsiff Court, Thrissur as modified by the Additional District Court in A.S.404/2001 is set aside. O.S.2858/1998 stands dismissed. No cost. M.SASIDHARAN NAMBIAR JUDGE lgk/tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006