IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 RSA.NO. 143 OF 2010() --------------------------------- AS.91/2006 OF ADDL.DISTRICT COURT, KOZHIKODE OS.454/2003 OF ADDL.M.C.,KOZHIKODE-I .................... APPELLANTS – RESPONDENTS - DEFENDANTS: ---------------------------------------------------------------- 1. KALATHIL PRESANNAKUMARI, D/O.KALATHIL APPUKUTTY NAIR, CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK.' 2. KALATHIL PUSHPAKUMARI, DO.D O. DO. 3. KALATHIL SUNIL KUMAR, S/O. DO. DO. DO. 4. KALATHIL SANTHOSH KUMAR, DO. DO. DO. 5. KALATHIL PRAMOD KUMAR, DO. DO. DO. 6. KALATHIL MANOJ KUMAR, DO. DO. DO. 7. KALATHIL PRIYA, D/O. DO. DO. DO. 8. KALATHIL KAMALAKSHY AMMA, W/O. DO. DO. BY SENIOR ADVOCATE SHRI SRI.T.KRISHNANUNNI SRI.C.M.MOHAMMED IQUABAL RESPONDENT – RESPONDENT - PLAINTIFF: ----------------------------------------------------------- MAMMU, EDAVALATH KAITHAL MOIDU, CHERUPURAM AMSOM DESOM, KOYILANDY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/02/2010, ALONG WITH RSA NO. 144 OF 2010 RSA NO. 144 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.143 of 2010 & R.S.A. NO.144 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of February, 2010 J U D G M E N T --------------------- Landlord/plaintiff filed petitions before the Rent Control Court seeking eviction of the appellants in the these appeals from the respective shop rooms on the ground of his bona fide need for own occupation. Appellants, tenants of the respective shop rooms resisted the petitions setting up Ext.B1, agreement for sale in their favour and claiming that since they have performed their part of the contract they are not liable to be evicted in view of Section 53A of the Transfer of Property Act (for short, “the Act”). Learned Rent Controller thought that there is a bona fide dispute regarding title in view of the claim for protection of Sec.53A of the Act which is required to be adjudicated in a comprehensive suit before the civil court and accordingly the rent control petitions were dismissed in the year 1974 and that dismissal became final by the decision of this Court on 8.10.1985. In the year 2003 landlord filed O.S.Nos.454 and 460 of 2003 in the civil court seeking eviction of R.S.A. Nos.143 & 144 of 2010 -: 2 :- appellants from the respective shop rooms on the very same ground of bona fide need for own occupation. Appellants in turn set up Ext.B1, agreement for sale. Courts below concurrently found against due execution of Ext.B1, held that the landlord bona fide needed schedule rooms for own business and accordingly granted decree for eviction. That is under challenge in these Second Appeals raising by way of substantial questions of law whether courts below are justified in not finding that right of landlord if any, in the suit property is lost by adverse possession and limitation by not filing the suit for about 18 years and whether courts below are justified in holding against genuineness of Ext.B1. Learned Senior Advocate for the appellants referred to the above points and contended that when respondent thought of suing the appellants after 18 years of the final disposal of rent control petitions and in the light of evidence on record contention of appellants should have been accepted. It is contended by the learned Senior Advocate that finding of the courts below regarding genuineness of Ext.B1 is also not sustainable. 2. So far as plea of adverse possession and limitation is concerned appellants did not dispute that they were tenants of the respondent and thus got possession of the respective rooms on the R.S.A. Nos.143 & 144 of 2010 -: 3 :- strength of the rental arrangement. Exhibit B1 is dated 30.7.1975 and according to the appellants that agreement was executed between them and the father of respondent as per which the latter agreed to sell the respective shop rooms to the appellants for consideration stated therein. Even as per the version of appellants they continued to be in possession as per Ext.B1, agreement for sale dated 30.7.1975. That possession cannot be adverse to the title of respondent so that on the expiry of the statutory period appellants perfected title by adverse possession and limitation. 3. So far as execution of Ext.B1 is concerned appellants examined D.W.2 an Advocate Clerk who is stated to have prepared Ext.B1. He, of course gave evidence in support of appellants but courts below were not inclined to believe his version for reasons more than one. According to the appellants and as per the version of D.W.2, Ext.B1 was executed on 30.7.1975. But it turned out from Ext.B1 itself that the stamp paper was purchased on 4.4.1975 and appellants had no satisfactory explanation as to why the stamp paper was purchased on that day. It also come out in evidence that there were discrepancies in Ext.B1 though it was allegedly written by D.W.2 who is an experienced Advocate clerk attached to a Senior R.S.A. Nos.143 & 144 of 2010 -: 4 :- Advocate of the station practising on civil side as well. Title of respondent as per Ext.A1 is not under challenge. In Ext.A1 item No.4 is stated to have an extent of seven (7) cents but in Ext.B1 notwithstanding that D.W.2 prepared it with reference to Ext.A1, extent of the property is stated as six cents. There was also no mention of the respective buildings in Ext.B1. In the meantime appellants had filed O.S. No.155 of 1977 for specific performance of the agreement for sale and as seen from Exs.A16 and A17 that suit was dismissed for default on 13.11.1987. Trial court observed that in Ext.B1 alleged to be executed by the father of respondent, signature of the executant differed in the various sheets. Though in Ext.A3, Order learned Rent Controller made an observation that Ext.B1 is genuine this Court while disposing of the revision petitions as per Ext.A10 stated that learned Rent Controller exceeded his jurisdiction in entering such a finding. Trial court found against genuineness of Ext.B1 which the first appellate court confirmed. That being a finding of fact on evidence it does not involve any substantial question of law. 4. Respondent sought eviction of appellants under Section 11(3) of Act 2 of 1965. He pleaded that he needs the schedule R.S.A. Nos.143 & 144 of 2010 -: 5 :- rooms for business and that he has no other room in his possession. He gave evidence in that regard as P.W.1. There is no evidence to show that respondent has any other occupation for his livelihood or that he has any other room in his possession for his proposed business. So far as application of first and second provisos of Section 11(3) of Act 2 of 1965 is concerned courts below found that appellants have not proved the same. In the circumstances I do not find any substantial question of law involved in the Second Appeals requiring a decision. Second Appeals are therefore dismissed in limine. Interlocutory Application Nos.333 and 334 of 2010 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv