IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 FAO.No. 279 of 2007() --------------------- AS.14/2007 of ADDL.DISTRICT COURT/SPL. COURT FOR NDPS ACT CASES, THODUPUZHA OS.197/2005 of MUNSIFF COURT,THODUPUZHA .................... APPELLANT/RESPONDENT/PLAINTIFF ---------------------------------------------- KAMALAKSHI, D/O. KESAVAN, VANIYEDATHU, (VELLAMACKAL) HOUSE, MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT/APPELLANT/DEFENDANT -------------------------------------------- MARY, W/O. BABU, KATTAMKOTTIL HOUSE, MUTTOM KARA AND VILLAGE, THODUPUZHA. BY ADV. SRI.JOMY GEORGE THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- F.A.O.No.279 of 2007 ------------------------------------------------- Dated, this the 27th day of March, 2008 JUDGMENT The appellant filed a suit for eviction of the respondent alleging that there is landlord-tenant relationship between them. In the plaint it was averred that the property originally belonged to her sister and the sister executed a will bequeathing the property in her favour. It is averred that respondent committed default in payment of rent. Appellant issued a notice under Section 106 of the Transfer of Properties Act terminating the tenancy of which the respondent had not sent any reply at all. 2. Respondent contended that the tenancy arrangement was not on 28.3.2003 but on 18.4.1997. It is also contended that she had paid Rs.20,000/- as security on 18.4.1997 and she is entitled to get back that amount. It is further contended that she had paid rent upto February, 2005. 3. Trial court found that the appellant is the landlord and respondent is the tenant. It also found that the tenancy arrangement was terminated. re is denial of landlord-tenant relationship. Hence ordered eviction of the respondent. Challenging that decree and judgment the respondent filed an appeal as A.S.No.14/2007 before the Additional District FAO No.279/2007 2 Court, Thodupuzha. The main contention raised before the lower appellate court was that the will was not proved and apart from the appellant there are other legal heirs. The lower appellate court found that the will under which the appellant got title over the property was not proved and there is doubt regarding the identity of the property. With the above findings the lower appellate court set aside the decree and judgment passed by the trial court and remanded the matter for fresh disposal. Challenging that order of remand the appellant/plaintiff has filed this appeal. 4. The following substantial questions of law were framed for consideration in this appeal: i. Is not the lower appellate court in error in setting aside the decree of trial court granting a decree of recovery of possession granted in favour of the plaintiff and remanding the matter to the trial court for considering the title of the plaintiff to the plaint schedule property, in the absence of even a formal denial of the averments of the plaintiff in her plaint in respect of her title to the plaint schedule property. ii. Is not the lower appellate court in serious error in over looking the fact that the defendant in his pleadings has admitted the fact that he was paying rent to the plaintiff and her son in respect of the plaint schedule property. In the light of this admission was it is not obligatory on the part of FAO No.279/2007 3 the lower appellate court to have held that the defendant is estopped in view of Section 116 of the Indian Evidence Act even to deny the title of the plaintiff. 4. The only point arising for consideration in the appeal is whether there is material to establish the landlord-tenant relationship and whether the tenancy arrangement is terminated. Whether the appellant got absolute title over the property under Ext.A1 will is immaterial. It is also not necessary to implead the other heirs of deceased Karthiayani. If the appellant is able to establish that she is the landlord , she has every right to evict her tenant. So the sole question arising for consideration is whether there is landlord-tenant relationship between the plaintiff and defendant and whether the tenancy was properly terminated. That aspect has not been considered by the lower appellate court. The lower appellate court proceeded as if it is a suit for recovery of property on the strength of title. Since the lower appellate court treated the suit as one based on title, I have no other option but to set aside the order of remand passed by the lower appellate court and remand A.S.No.14/2007 back for fresh disposal in accordance with law. In the result, appeal is allowed. The order of remand passed by the lower appellate court in A.S.No.14/2007 is hereby set aside and the appeal FAO No.279/2007 4 is remanded to the lower appellate court for fresh disposal. Lower appellate court is directed to take appeal back to file and dispose of the same afresh in accordance with law, as expeditiously as possible, at any rate, within a period of six months from the date of first appearance of parties. Parties shall appear before the lower appellate court on 22.5.2008. I.A.No.3481/2007 in F.A.O.No.279/2007 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks