IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 RSA.No. 824 of 2008() --------------------- AS.3/2005 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.579/2001 of M.C.,PATHANAMTHITTA .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------ C.N.CHANDRASEKHARAN NAIR KAMUKUMCHERIYATHU VEEDU, ELANTHOOR VILLAGE KOZHENCHERRY TALUK, PATHANAMTHITTA. BY ADV. SRI.C.B.SREEKUMAR RESPONDENT/RESPONDENT/ PLAINTIFF: --------------- K.P.SANTHAKUMARI, AGED 50 YEARS, D/O.LATE PADMANABHAN NAIR KAPPIL HOUSE, ELANTHOOR VILLAGE KOZHENCHERRY TALUK PATHANAMTHITTA , NOW R/AT. SREEPADMAM HOUSE PAZHAVATHU, CHANGANACHERRY. ADV. SRI.K.JAGADEESCHANDRAN NAIR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.824 OF 2008 --------------------------------------------- Dated 26th May, 2011 JUDGMENT Defendant in O.S.579/2001 on the file of Munsiff Court, Pathanamthitta is the appellant. Respondent is the plaintiff. Respondent instituted the suit for recovery of possession of the plaint schedule shop room on termination of lease with arrears of rent. It is admitted by the appellant that he executed Ext.A1 rent deed dated 1/9/1999 and is continuing in possession of the building as tenant. Respondent sent Ext.B1 notice terminating the tenancy and sought recovery of possession. Appellant sent Ext.B4 reply contending that rent has fallen in arrears as the respondent did not receive the amount. Respondent sought decree for recovery of RSA 824/08 2 possession contending that in spite of termination of the lease appellant did not surrender the building. Appellant resisted the suit contending that from 12/4/1999 onwards respondent did not accept the rent and it has therefore, fallen in arrears. It was contended that plaint schedule property originally belonged to Padmanabhan Nair, father of the respondent and it was originally taken on rent from Padmanabhan Nair and there is no other building available in the locality for the appellant to shift the business. 2. Learned Munsiff on the the evidence of Exts.A1, B1 to B4, X1, PW1 and DW1 granted decree directing the appellant to surrender vacant possession of the building and permitting the respondent to realise Rs.3,600/- from the appellant, the rent due from November RSA 824/08 3 1998 onwards. Appellant challenged the judgment before District Court, Pathanamthitta in A.S.3/2005. Learned District Judge on re- appreciation of the evidence dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that plaint schedule building was originally obtained on rent from the father of the respondent and though Ext.A1 rent deed was executed in the name of respondent, he is the tenant under the original lease and therefore, by terminating Ext.A1 lease respondent is not entitled to take delivery of the property. Learned counsel also argued that tenancy terminated is one created under Ext.A1 and not the original tenancy and the rent has fallen RSA 824/08 4 in arrears not because of the fault of the appellant but as the respondent did not collect the same. It is therefore argued that decree is not sustainable. 5. Appellant is admitting Ext.A1. Ext.A1 shows that plaint schedule building was obtained by the appellant from the respondent on 1/9/1999. Though appellant raised a contention that there was original lease from the father of the respondent, when under Ext.A1 appellant executed the rent deed admitting title of the respondent and agreeing to pay the rent, he is not entitled to dispute the tenancy created under Ext.A1 and is not entitled to contend that original lease from the father subsists. Even if it is taken that there was an original lease obtained from the father of the respondent, when the respondent became owner RSA 824/08 5 and appellant executed Ext.A1 rent deed in favour of the respondent, he is not entitled to contend that he is not tenant under the respondent. It is not disputed that lease created under Ext.A1 was terminated by a valid notice as provided under Section 106 of Transfer of Property Act. The Kerala Buildings (Lease and Rent Control), Act (Act 2 of 1965) is not attracted as the building is not within a notified area. In such circumstances, respondent is entitled to recover possession of plaint schedule building with arrears of rent, as rightly found by the courts below. Though appellant contended that the rent has fallen in arrears as the respondent did not collect the same, it is not disputed that he is liable to pay the same. In such circumstances, decree granted by the trial court is perfectly legal. RSA 824/08 6 I find that no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.