IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 SA.No. 170 of 1997(C) --------------------------- AS.5/1994 of SUB COURT, KASARAGOD OS.517/1990 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S)/RESPONDENT/PLAINTIFF ------------------------------------------------- K. BALAKRISHNA, S/O. BATYA CHETTIYAR, RESIDING AT KUMBLA, KOIPADY VILLAGE, KASARAGOD TALUK, P.O. KUMBLA. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SMT.R.VIJAYA GOPAL SRI.P.B.KRISHNAN RESPONDENT(S)NO.1/APPELLANT NO.2/DEFENDANT NO.2 --------------------------------------------------------------------- 1. ARIKADY MOOSA, S/O.BAPUNHI, RESIDING AT JUMA MASJID ROAD, ARIKADY VILLAGE, KASARAGOD TALUK, P.O. KUMBLA. 2. KUNHIMMA, W/O.HAJI ABDULLA, THOUFIQ MAHAL, POST SHIRIYA, SHIRIYA VILLAGE, KASARAGOD TALUK. 3. AISHA, W/O. G.A.MUHAMMED KUNHI, S/O.ABDUL RAHIMAN HAJI, POST SHIRIYA, KASARAGOD TALUK 4. KHADEEJA, W/O.ABDULLA KUNHI,S/O. MAMMUNHI, CHAYI, RAHATH MANZAL,POST SHIRIYA,KASARAGOD TALUK. 5. ZURA, W/O.HAMEED, S/O.PATTA MUHAMMED, HIL TOP HOUSE, PERUVAD, POST KUMBLA, KASARAGOD TALUK. 6. UMMEERA,W/O.USMAN,S/O.SULAIMAN, MOIDEEN PALLI ROAD, NELLIKKUNNU, POST KASARAGOD. svs ..........2/-... ...2... 7. MAIMUNA,W/O.MOIDU,S/O.G.ABDULLA,PATTA TRAVELS, PILIKUNJE, KASARAGOD. 8. KALANDAR,S/O.HAJI ABDULLA, THOUFIQ MAHAL, POST SHIRIYA, SHIRIYA VILLAGE, KASARAGOD TALUK. (APPELLANT NO.1 IN THE LOWER APPELLATE COURT DIED AFTER THE DECREE OF THE LOWER APPELLATE COURT AND HIS LEGAL REPRESENTATIVES ARE RESPONDENTS 2 TO 8). BY ADVS. SRI.C.P.DAMODARAN NAYAR SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON 06/12/2010 DELIVERED THE FOLLOWING: svs/ P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 170 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of December, 2010. JUDGMENT The tenant of a building, who surrendered the structure to the landlord on the basis of Ext.A1 agreement dated 18.4.1989, and on the basis of which he was to be re-inducted after reconstruction of the building, is the appellant. 2. The facts are not in dispute. The issue centers around the right of the tenant to seek re-induction to a particular portion of the reconstructed building. Ext.A1 is the admitted document between the parties. It is also not in dispute that after reconstruction the room was offered to the tenant. However, the tenant insisted that he is entitled to a particular room and that the landlord is bound to give it to him. The landlord on the other hand said that going by Ext.A1 agreement all that he had to do was to offer a room to the tenant and the tenant could not insist for a particular portion of S.A.170/1997. 2 the building. The trial court held in favour of the tenant. On appeal by the landlord, the appellate court reversed the findings and dismissed the suit. 3. In this Second Appeal the following questions of law are seen raised: “(A) In the nature of the agreement Ext.A1, proof of a separate oral agreement to allot the shop room more or less at the same place where the room surrendered under Ext.A1 stood, would be barred under the 2nd proviso to Section 92 of the Indian Evidence Act? (B) Is the lower appellate court right in law in finding that the oral agreement, if relied, would vary or add to the terms of the written agreement Ext.A1 and therefore not reliable? © Is the lower appellate court correct in law in finding that the separate oral agreement is inconsistent with the terms of the written agreement Ext.A1? (D) Is not the finding of the lower appellate court as regards the inadmissibility of the oral agreement faulty and unsustainable for its failure S.A.170/1997. 3 to advert to the incompleteness of the written agreement as regards the various terms to which the parties would have agreed to? (E) Is not Ext.A1 agreement an informal document which makes it compulsive to advert to contemporaneous oral agreements on matters on which the written statement is silent?” 4. Learned counsel appearing for the appellant pointed out that the lower appellate court has erred both on facts and in law in holding that in the light of Section 92 of the Indian Evidence Act the appellant is precluded from adducing oral evidence. Learned counsel pointed out that the lower appellate court has omitted to note that the third proviso to Section 92 of the Indian Evidence Act, which permits oral evidence under certain special circumstances. The case on hand falls one among them. According to the learned counsel, even though the terms of Ext.A1 agreement does not as such specify any particular portion of the building, there was an oral understanding between the S.A.170/1997. 4 parties that the tenant would be given a room atleast with the same advantages which he had enjoyed at the time of handing over possession of the building. It was also contended that there was no justification in the lower appellate court reversing the finding of the trial court, which had considered the evidence in detail and the probabilities of the case. 5. Learned counsel appearing for the respondents did not dispute the plea regarding Section 92 of the Indian Evidence Act. However, the learned counsel pointed out that the parties are governed by a written agreement and that should be given effect to. If as a matter of fact, there was an understanding between the parties that the tenant after reconstruction would be given a room having the same advantages as he had enjoyed before, nothing prevented the parties from incorporating such a clause in Ext.A1 agreement. Learned counsel also drew the attention of this court to the fact that several concessions have been given to the defendant while re-inducting him in one of the rooms S.A.170/1997. 5 after reconstruction. Learned counsel stressed that law does not recognize or permit a tenant to insist for a particular portion of the building and all that he is entitled to is a room as convenient as possible as he was having before. In the case on hand there is nothing to show that the room offered suffers from any disadvantages and the lower appellate court was therefore justified in dismissing the suit. 6. As rightly pointed out by the learned counsel for the respondents, the parties have chosen to reduce the terms into writing as evidenced by Ext.A1 dated 18.4.1989. All that the said document says is that a room will be allotted to the tenant on reconstruction on payment of amounts agreed to between the parties. There is nothing in Ext.A1 to indicate that the tenant had insisted and the landlord had agreed to provide any particular room or portion of the building to the tenant, nor is there anything to show that the landlord had made any particular promise regarding the location of the room to be offered to the S.A.170/1997. 6 tenant after reconstruction of the building. There is considerable dispute regarding the question as to whether the plan was shown to the tenant or not, before the agreement was entered into. While the tenant would say that no such plan was shown to him, the landlord would say otherwise. It is not in dispute that the tenant was occupying a room, which faced the main road, but the building in which he occupied a room was slightly away from the main road. 7. It is true that the plaintiff has examined P.W.2 in support of his case. But as rightly noticed by the learned counsel for the respondent, his evidence cannot be given much importance because of the terms contained in Ext.A1 agreement. If as a matter of fact there was an understanding between the parties that the tenant would be given a particular room, that could have been easily incorporated in Ext.A1 agreement. Various concessions given to the tenant would also indicate that there could have been no such understanding. S.A.170/1997. 7 8. The newly constructed structure has a horseshoe shape. The insistence of the tenant is that since he was occupying the room near the room of Jayashankara, another tenant in the old building, he is entitled to the same facility in the reconstructed building also. One fails to understand the basis of such a contention. The trial court finds fault with the landlord in not treating the plaintiff in this case on par with Jayashankara and holds in favour of the tenant. A reading of the trial court judgment would clearly show that the finding is based on conjunctures and surmises and not on the basis of the evidence on record and the law on the point. May be that the lower appellate court was not justified in holding against the tenant on the basis of Section 92 of the Indian Evidence Act. 9. Ext.C1 is the Commissioner's report. It is interesting to note that there was no attempt from the side of the tenant to show that one of the eight rooms offered to him did not have access to the main road or that he would be placed in a disadvantages position. It has also come out S.A.170/1997. 8 in evidence that the room which he now insists has a plinth area of 200 square feet, whereas he is entitled to only 100 square feet as per Ext.A1 agreement. Of course, it is suggested that the room could be partitioned, but that is for the landlord to decide and the tenant cannot compel him to do so. There is also nothing to show that the tenant is deprived of the facilities he had enjoyed. 10. It is also significant to notice that in any of the reply notices sent by the tenant to the landlord, he had not expressed his desire to have a particular room in the reconstructed building. If as a matter of fact the tenant had a grievance that one of the eight rooms offered to him did not suit his purpose or that it had any disadvantage, it is for him to establish the said fact. When the commission was taken out by him, he could have easily asked the commissioner to note the various factors. For reasons best known to him, he desisted from doing so. Under the Rent Control Act, Act 2 of 1965 after reconstruction the tenant is to be inducted into possession. It is well settled that the S.A.170/1997. 9 tenant cannot insist that a particular portion of the building should be given to him. All that is stipulated by law is that the room should be as far as possible of the same plinth area as he was occupying before. In the case on hand, the landlord had pointed out that he intends to occupy two of the rooms, one of which is now sought by the tenant. The trial court found fault with the landlord for not having mentioned this fact in the written statement and holds against the landlord. As already noticed, the reasons given by the trial court to hold in favour of the tenant do not appear to be very convincing at all. Whatever that be, the fact remains that the tenant has been unable to show that there was any agreement outside Ext.A1 agreement, by which he can insist for a particular room in the reconstructed building. The landlord has specifically stated that the rooms offered to the tenant have all the conveniences and advantages and the claim to the contrary by the tenant is without basis. There is no contra evidence at all. S.A.170/1997. 10 The result is that this appeal fails and it is only to be dismissed. I do so with costs to the respondents. P. BHAVADASAN, JUDGE sb.