IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 RSA.No. 87 of 2008() -------------------- AS.72/2001 of PRL.SUB COURT, KOZHIKODE OS.438/1998 of ADDL.M.C.,KOZHIKODE-I .................... : APPELLANT/APPELLANT/DEFENDANT ---------------------------------------------- NALUPURAKKAL CHANDRAMATHI, AGED 55, W/O.C.H.GOVINDAN, "MURALI", KOTTOOLI, KOZHIKODE. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: RESPONDENT/PLAINTIFF --------------------------------- P.VASUDEVA KURUP, AGED 55, S/O.JANAKI AMMA, "AMRITHA", NEAR BRINDAVAN COLONY, P.O.CHEVAYOOR, KOZHIKODE - 17. BY SRI.N.L.KRISHNAMOORTHY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.239/2008 IN R.S.A.NO.87/2008 6.2.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 87 OF 2008 =========================== Dated this the 6th day of February, 2008 JUDGMENT Defendant in O.S.438/1998 on the file of Munsiff Court, Kozhikode is the appellant. Plaintiff is the respondent. Respondent instituted the suit for recovery of possession of plaint schedule building contending that while the building was being constructed respondent needed money and appellant was prepared to pay Rs.65,000/- on condition and Ext.A1 agreement to mortgage the property was executed on 9.6.1988 whereunder Rs.20,000/-was paid on the date of the agreement and Rs.35,000/- was agreed to be paid on or before 10.7.1988 and the balance of Rs.10,000/- is to be paid after completing the construction of the building and entrusting the shop room to the appellant. It was contended that on 3.1.1989 after completing the construction, plaint schedule shop room was handed over to the appellant and he is in R.S.A.87/2008 2 possession of the room under the agreement. Ext.A1 also provides for payment of future profits at the rate of Rs.600/- per month, after deducting the interest payable on the mortgage amount paid. Contending that appellant is not having any other right, respondent instituted the suit for recovery of possession. 2. Appellant resisted the suit admitting execution of Ext.A1 agreement but contending that agreement was executed on an entirely different circumstance. It was also contended that there was no intention to create a mortgage and the amount of Rs.65,000/- had to be paid on four occasions on the assurance that one shop room will be granted on lease to appellant and the rent payable is Rs.600/- per month. It was contended that appellant is continuing in possession of the property as a building tenant and not under Ext.A1 agreement and therefore the suit is not maintable. 3. Learned Munsiff on the evidence of Pw1 and DW1 and Exts.A1 to A8 and B1 and B2 found that appellant is not a tenant as claimed by him and instead he is in possession of the building under R.S.A.87/2008 3 Ext.A1 and therefore respondent is entitled to the decree for recovery of possession. As the amount paid by appellant has already been adjusted towards the amount payable by appellant at Rs.600/- per month, decree for recovery of possession alone was granted. Appellant challenged the judgment before Sub Court in A.S.72/2001. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant and respondent, who appeared by lodging a caveat, were heard. 5. The argument of the learned counsel appearing for appellant is that courts below did not properly appreciate the evidence. It was argued that Ext.A1 does not provide for execution of a mortgage deed and it is only an agreement to create a mortgage and no mortgage was created. It was also contended that courts below were carried away by the earlier suit O.S.831/1993 filed by appellant and it was a suit for specific performance of an agreement for sale and courts R.S.A.87/2008 4 below omitted to take note of the fact that, when examined as PW1 in that case appellant had deposed about the cooli kychit executed by appellant in favour of respondent and in such circumstance, it should have been found that possession of appellant is not under Ext.A1 but under the cooli kychit and appellant is therefore protected by provisions of Kerala Buildings (Lease and Rent Control) Act and decree for recovery of possession grated is not sustainable. 6. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 7. Execution of Ext.A1 is admitted. Ext.A1 shows that appellant had agreed to advance Rs.65,000/- to the respondent on mortgaging the property. Out of Rs.65,000/- Rs.20,000/- was paid on the date of execution of Ext.A1. He agreed to pay Rs.35,000/-, out of the balance on or before 10.7.1988. The balance of Rs.10,000/- is to be paid at the time when plaint schedule shop room is entrusted to the appellant. It is admitted case that when Ext.A1 was executed, the building R.S.A.87/2008 5 was under construction. Respondent needed money for completing the construction work. Ext.A1 also shows that possession of the room is to be handed over to appellant by respondent not as a tenant but only as a mortgagee. There is nothing in Ext.A1 to show that the transaction is a lease as claimed by appellant. 8. It is also admitted case that appellant had earlier instituted O.S.831/1993 a suit for specific performance of a contract for sale alleging that on 3.4.1989 an agreement for sale was entered into between the appellant and respondent whereunder respondent agreed to sell the plaint schedule shop room for consideration of Rs.40,000/-. It is for the specific performance of that agreement O.S.831/1993 was filed. In that suit, as evidenced by Ext.A6 judgment appellant had no case that he was a tenant of plaint schedule building, when the alleged agreement for sale was executed on 3.4.1989. He has no case that there was any other relationship between the appellant and respondent than what is reflected in Ext.A1. It is in such circumstance, courts below disbelieved the case of R.S.A.87/2008 6 appellant that he has been in possession of the building as a tenant under a cooli kychit and not under Ext.A1. From the conduct of the appellant, it is absolutely clear that her case cannot be believed. In O.S.831/1993 she claimed that she is in possession of the building under an agreement for sale. In the written statement in this suit appellant contended that she has been in possession of the property under a cooli kychit. That is not proved. When examined as DW1, appellant admitted execution of Ext.A1. Ext.A1 shows that possession of building was to be handed over to the appellant only as a mortagee and not as a tenant. In such circumstance, appeal is dismissed in limine. 9. Learned counsel appearing for appellant then submitted that appellant is conducting a medical shop in the plaint schedule building and she may be granted reasonable time to surrender vacant possession of the building. Considering the fact that appellant has been conducting a medical shop in the plaint shchedule building, it is only appropriate that reasonable time is granted to the R.S.A.87/2008 7 appellant to surrender vacant possession of the building. But it could only be on condition. If appellant files an affidavit before the trial court unconditionally undertaking to surrender vacant possession of the building on or before 2.6.2008 and also agreeing to pay the admitted amount of Rs.600/- per month without failure each month and deposit money portion of the decree as found by the courts below, which is to be deposited within one month. Appellant is granted time to surrender vacant possession of the building upto 2.6.2008. The affidavit is to be filed before the trial court within three weeks from today. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A..NO.227 /1997 --------------------- JUDGMENT 6TH FEBRUARY,2008