IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 SA.No. 417 of 2000(G) --------------------- ( AS.42/1998 of ADL.SUB COURT, THALASSERY OS.205/1995 of MUNSIFF COURT, THALASSERY) .................... APPELLANT/1ST DEFENDANT: ----------------------------------------- C.K.KARUNAKARAN, S/O. KELU NAMBIAR, HOTEL BUSINESS, KUNIYIL HOUSE, ERANHOLI AMSOM & DESOM, P.O. ERANHOLI, HALASSERY DIST. KANNUR. BY ADV. SMT.A.C VIDHYA RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT 2, 3 AND 4: --------------------------------------------------------------------------------------------------- 1. K.P.SOUMINI, D/O.KORAN, THALASSERY AMSOM, VADIKKAKAM DESOM, P.O. THALASSERY, DIST. KANNUR. 2. MRS.RADHA RAGHAVAN, W/O.RAGHAVAN, DRS. NO.5 EXCISE COLONY, P.10, PADUR, COIMBATORE 41. 3. SMT.SUSHEELA, D/O.KORAN, KUNIYIL HOUSE, ERANHOLI AMSOM & DESOM, P.O. ERNHOLI, THALASSERY, DIST. KANNUR. 4. K.P.SAROJINI, D/O.KORAN, KUNIYIL HOUSE, ERANHOLI AMSOM & DESOM, P.O. ERAHOLI, THALASSERY, DIST. KANNUR. R1, 3, 4 BY ADV. SRI.C.P.PEETHAMBARAN R2 BY ADV. CIBI THOMAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7.2.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 417 of 2000(G ------------------------------- ORDER ON CMP. NOS.1135/2000 AND 1134/2000 DISMISSED 07.02.2011 Sd/- P.BHAVADASAN, JUDGE / TRUE COPY / P.A. TO JUDGE vk P.BHAVADASAN, J. ---------------------------- S.A.No. 417 of 2000 --------------------------------- Dated this the 7th day of February, 2011 JUDGMENT First defendant in O.S.No.205/1995 before the Munsiff's Court, Thalassery who sufferred a decree at the hands of the trial court and which was confirmed in appeal is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff and defendants 2 to 4 are admittedly co-owners. The case of the plaintiff is that the premises involved in this suit was given on license to the first defendant a monthly rent of Rs.40/- per day. Subsequently, the first defendant had colluded with the second defendant and had stopped payment of rent. The plaintiff is entitled to 1/4 share at the rate of Rs.10/- per day. The suit was filed for arrears of rent. 3. First defendant resisted the suit by pointing out that he has been a licensee for the last five years and the license fee was being paid to the second defendant. As per the agreement, this defendant is not liable to pay any amount to the plaintiff or to other defendants. The amount shown in the plaint is not correct and the plaintiff is not having any cause of action. The suit is only an experimental one and first defendant is not liable to pay any amount claimed by the plaintiff and hence the suit may be dismissed with costs. S.A.No. 417 of 2000 2 4. Second defendant contested the suit by filing a written statement. The second defendant claimed that she has inherited the business of their father and first defendant is the manager and she is entitled to take income from the business. She claimed to be in exclusive possession of the premises. She also claimed that she has perfected title by way of adverse possession and limitation. On the basis of this contention, she prayed for a dismissal of the suit. 5. Third and fourth defendants filed written statement supporting the case of the plaintiff. 6. Based on the above pleadings necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as EXts.A1 to A13 from the side of the plaintiff. Defendants had DW1 examined and Exts.B1 to B14 were marked. 7. The trial court after elaborate consideration of the evidence, came to the conclusion that the licence fee is Rs.40/- per day and the plaintiff is entitled to 1/4th of that amount and she is entitled to realise the amount from the first defendant and the suit was accordingly decreed. 8. Aggrieved, the first defendant carried the matter in appeal as A.S. 42/1998 before the Sub Court, Thalassery. The lower appellate court after considering the evidence independently, concurred with the S.A.No. 417 of 2000 3 trial court and dismissed the appeal. 9. Notice has been issued on the following substantial questions of law: a. Have the courts below omitted to consider important admissions of the plaintiff as PW1 and third defendant as DW1 in deciding the case. b. In the light of the written statement of the second defendant and in the light of evidence of DW2 and admissions of PW1 and DW1 were the courts below legally right in decreeing the suit against the first defendant. c. In the facts and circumstances of the case is the decree of the courts below legally sustainable. 10. The learned counsel for the appellant pointed out that the courts below have omitted to note the vital admissions made by the plaintiff when examined as PW1. The courts below were not justified in coming to the conclusion that the plaintiff is entitled to succeed in the suit. The first defendant has paid the license fee to second defendant. Ext.B12 document was produced to prove the agreement between first and second defendant. Therefore, he was not answerable to anybody else. These aspects have not been considered by the courts below while dismissing the suit. 11. At the outset, it is to be said that there is no merit in the above contentions. Both the courts below have noticed that first defendant has admitted that the defendants 2 and 4 and plaintiff were S.A.No. 417 of 2000 4 co-owners. It is true that the plaintiff when examined as PW1 stated that he was aware of the fact that the first defendant had put forward a case that an agreement was entered into between the second defendant and himself and as such lump sum of 11,000/- had been paid to the second defendant. 12. It may be noticed that the first defendant has no case in written statement or evidence that he has paid any lumpsum to the second defendant as license fee. The license fee has to be paid every day to the second defendant. A reading of Exts.B13 and B14 would show that the second defendant had indicated that the other co-owners are unhappy about the way in which the transaction has been going on between first and second defendants. 13. Again, it must be remembered that the plea of the first defendant is one of discharge. It is trite that in a plea of discharge, the entire burden is on the person who sets up such a plea. The courts below have found that absolutely no payments have been made by the first defendant to the second defendant towards the license fee. There is nothing to show that the findings of the courts below are perverse, warranting interference by this court. 14. Both the courts below have considered the evidence independently and hence reached identical conclusions. They are S.A.No. 417 of 2000 5 essentially, questions of facts arrived at based on the evidence on record. No substantial questions of law arise for consideration in this appeal. The Second Appeal is devoid of any merits and it is accordingly, dismissed. P.BHAVADASAN, JUDGE. ln