IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 RSA.No. 623 of 2010() --------------------- AS.118/2006 of DISTRICT COURT, PALAKKAD OS.228/2004 of MUNSIFF COURT, CHITTUR .................... APPELLANT:APPELLANT:DEFENDANT: ----------------------------------------------------------- C.MANI, S/O.CHAMI, RESIDING AT AYYANPUDUR, CHITTUR P.O., CHITTUR TALUK, PALAKKAD DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD, SRI.C.A.ANOOP. RESPONDENT(S): RESPONDENT:PLAINTIFF: ------------------------------------------------------------------ R.RAJI, W/O.SUBRAMANIAN, RESIDING AT `SUBHASH NIVAS', AYYANPUDUR, CHITTUR P.O., CHITTUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1334/2010 IN RSA NO.623/2010 CLOSED 7/07/2010 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------------------- RSA No.623 of 2010-G ------------------------------------- Dated 7th July 2010 Judgment Faced with the concurrent findings against him, the defendant in OS No.228/04 before the Munsiff's Court, Chittur has come up in appeal. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. The plaintiff obtained the plaint schedule property as per Ext.A1 assignment deed dated 14.11.2002. Eversince then, he has been in absolute possession and enjoyment of the property. It is pointed out that the defendant, who is a relative of the father of the plaintiff, was allowed to reside in the property as an interim arrangement and he had no manner of right over the suit property. He has been residing there from 23.01.2003 onwards. According to the plaintiff, the defendant had agreed to vacate the premises on demand. It is claimed RSA 623/10 2 that on 01.05.2004, the plaintiff revoked the permission granted to the defendant and asked him to vacate the premises. But, he did not heed to the said demand made by the plaintiff. Hence the suit. 3. The defendant resisted the suit, pointing out that he was in possession of the property in pursuance of an agreement of sale, entered into with the father of the plaintiff. According to him, the father of the plaintiff Sri.Ramankutty had agreed to sell the property to him for a sum of Rs.7,500/- and they had entered into a sale agreement dated 14.12.1991. It is submitted that due to financial difficulties, the sale deed could not be registered. Since the entire sale consideration was paid by the defendant, Sri.Ramankutty, the father of the plaintiff had agreed to register the document, as and when demanded by the defendant. The defendant submitted that for the last three years, both their families were not in good terms and so, Sri.Ramankutty was not ready to execute the sale deed in his favour and he executed it in favour of his daughter, RSA 623/10 3 who is the plaintiff. According to the defendant, he is in possession of the property since 1975 and he has made valuable improvements to the property. On the basis of these contentions, he prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendant examined DW1 and had Exts.B1 to B13 marked. 5. The Trial Court on an appreciation of the evidence, came to the conclusion that the claim of possession based on agreement of sale was not established and the execution of the agreement itself was doubtful. The Trial Court observed that the possession of the property by the transferee in pursuance of an agreement for sale cannot confer title to the transferee. It was held that the defendant has no manner of right over the plaint schedule property and accordingly, the suit was decreed. RSA 623/10 4 6. The defendant carried the matter in appeal as AS No.118/06 before the District Judge, Palakkad. The lower Appellate Court reconsidered the evidence on record and came to the conclusion that the defendant had miserably failed to establish any manner of right over the suit property which entitles him to continue in possession of the property. Accordingly, the Judgment and decree of the Trial Court was confirmed. The said Judgment and decree are assailed in this appeal. 7. The learned counsel for the appellant raised three contentions before this Court. They are : 1) There was no notice terminating the licence, issued to him by the plaintiff. 2) The defendant being in possession of the property in pursuance of an agreement for sale, he cannot be evicted in the manner as is now sought for by the plaintiff. 3) There was no notice issue to him, claiming mesne profits from the property. RSA 623/10 5 8. It must be said that none of the above contentions have any legal basis. It is stated in the plaint that there was a demand made by the plaintiff to give vacant possession of the premises. Even assuming there was no such notice, it does not matter because the defendant was in occupation of the property on the basis of a licence agreement and the institution of a suit amounts to notice. 9. As far as the second contention is concerned, both the courts below have found that the appellant was not able to establish his claim. The lower Appellate Court has noticed that the mistake committed by the Trial Court is regarding the claim based on S.53A of the Transfer of Property Act. With regard to this matter, the lower Appellate Court stated that it is not possible to accept the plea of the defendant that he was in possession of the suit property by virtue of an agreement for sale. 10. Cogent reasons are given by the courts below for disbelieving the defendant with regard to the RSA 623/10 6 claim of possession in pursuance of a sale agreement. It is pointed out that Ext.B1 agreement is dated 14.12.1991 and that Sri.Ramankutty had agreed to sell the property for a sum of Rs.7,500/-. The plaintiff has specifically disputed Ext.B1 agreement put forward by the defendant. There were witnesses to Ext.B1 agreement. But, for reasons best known to the defendant, he chose to examine none of those attestors. It is also found that in the cross examination, DW1 had no clear idea regarding the execution of Ext.B1 agreement. He was even unaware as to who wrote the said agreement. The lower Appellate Court also noticed that the agreement for sale and the receipt of sale consideration were at a point of time, when the relationship between the two families was quite friendly. If that be so, it would be improbable that the defendant would not have obtained a sale deed in his favour. He comes up with a story that Sri.Ramankutty had told him that the original title deed was in the bank and that he had agreed to execute the sale deed after receiving the RSA 623/10 7 document from the bank. This claim of the defendant was rightly declined by the first Appellate Court. It is also found that the claim of the defendant that he was in possession of the suit property from 1978 is not supported by any evidence. 11. The lower Appellate Court has independently evaluated the entire evidence on record and has come to the conclusion that there is nothing in the evidence adduced by the defendant to show that he is entitled to the protection of S.53A of the Transfer of Property Act. Equally without force is the third contention that without issuing notice, a claim of mense profits will not lie. It follows that all the three contentions raised by the appellant are without any basis. There is nothing to show that the findings of the courts below which are essentially questions of fact, are either perverse or unwarranted by the evidence on record. In the result, this Second Appeal is without merits and it is liable to be dismissed. RSA 623/10 8 12. Faced with the above situation, the learned counsel for the appellant pointed out that the defendant has been in occupation of the property for a very long time and he may be given some time to vacate the premises. In the facts and circumstances of the case and in the light of the fact that the defendant has been in occupation of the property for quite a long period, it is felt that four months' time may be granted to him to vacate the premises. 13. In the result, this appeal is dismissed, confirming the Judgment and decree of the courts below, on condition that the appellant files an affidavit within two weeks from today before the Trial Court to the effect that he shall unconditionally vacate the premises within a period of four months from today. Till such time, the execution of the decree shall be kept in abeyance. P.BHAVADASAN, JUDGE sta RSA 623/10 9 RSA 623/10 10