IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 SA.No. 930 of 2000(B) ------------------------------- AS.181/1994 of I ADDL. DISTRICT COURT, KOLLAM OS.178/1992 of MUNSIF -MAGISTRATE COURT, PARAVOOR .................... APPELLANT(S): APPELLANT/DEFENDANT ------------------------------------------------------------ ABDUL SALAM , VEGETABLE, MERCHANT, KOTTIYAM. BY ADVS. SRI.B.KRISHNA MANI SRI.V.PREMCHAND RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- KOLLAM BISHOP BISHOP'S PALACE, THANGASSERY, KOLLAM REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, REV. FATHER JAMES PUTHENPURA, BISHOP HOUSE, THANGASSERI, KOLLAM. R1 BY ADV. SRI.BECHU KURIAN THOMAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON NOS. 304/2001, 487/2001 & 814/2002 IN SA. NO.930/2000 DISMISSED 22/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.930 of 2000-B ------------------------------------- Dated this the 22nd day of June 2011 Judgment Faced with the concurrent findings against him, the defendant in OS No.178/92 before the Munsiff Magistrate's Court, Paravoor, has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for eviction with arrears of rent. According to the plaintiff, the defendant was inducted into possession on a monthly rent of Rs.100/- and from 31.12.1981, rent has been kept in arrears. The defendant has put up a building adjacent to the plaint schedule building and when the construction was started, the plaintiff was constrained to file a suit for injunction. Thereafter, a compromise was entered into and the suit was decreed in terms of the compromise. As per the compromise, the defendant had agreed to vacate the plaint schedule premises as and when the construction of his building was SA 930/00 2 completed. He did not do so. Therefore, notice terminating tenancy was issued to him. Since he had neither paid the arrears of rent nor did he vacate the premises, the suit was laid. 3. The defendant resisted the suit. He denied any landlord-tenant relationship between him and the plaintiff. According to him, one Muhammed Ismail constructed the present building 35 years back and it was from him that the defendant took the building on a monthly rent of Rs.10/-. According to him, the plaint schedule building stands on a puramboke land. The title of the plaintiff to the suit property was disputed. As regards the promise entered into between the parties and which was accepted in OS No.466/82, the contention was that that was the result of coercion and undue influence and therefor, it has no legal value. On the basis of these contentions, he prayed for a dismissal of the suit. 4. The trial court, on the basis of the above pleadings, raised necessary issues for consideration. The SA 930/00 3 evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendant had DW1 examined and had Exts.B1 to B4 marked. 5. The trial court, after an appreciation of the evidence in the case, came to the conclusion that none of the contentions raised by the defendant is tenable and decreed the suit directing the defendant to vacate the premises and also to pay Rs.5,466/- as arrears of rent with 6% interest and also to allow the plaintiff to recover Rs.100/- per month as damages for occupation and use, from the date of suit. 6. The disappointed defendant carried the matter in appeal as AS No.181/94 before the District Court, Kollam. The lower appellate court, after having elaborately considered the materials before it, found no reason to differ from the view taken by the trial court and accordingly confirmed the judgment and decree of the trial court. That brings the defendant before this court. SA 930/00 4 7. Notice is seen issued on the following questions of law raised in the second appeal : i. Is it not clear that the landlord has failed to prove his title over the scheduled building and is it not clear that even an issue has not been framed with regard to the question of title. ii. Is it not clear that there is no landlord-tenant relationship and that the findings with regard to tenancy are totally erroneous ? iii.Is it not clear that the mere payment and acceptance of rent, if any, does not constitute landlord tenant relationship and confer title ? iv.Is it not clear that Exts.A2 and A3 are the outcome of fraud, coercion and misrepresentation ? v. Under the circumstances, whether the courts below are justified in relying on Exs.A2 and A3 ? vi.Is it not clear that the schedule property is located in a puramboke land ? vii.Is it not clear that notice to quit has not been issued in terms of Section 106 of the Transfer of Property Act ? viii.Was the lower appellate court justified in dismissing IA No.1057/2000? 8. The learned counsel for the appellant contended that the courts below have not appreciated the evidence on record and have not addressed the issues in SA 930/00 5 the proper perspective. The definite case of the defendant was that the building was in a puramboke land and that there is no landlord-tenant relationship between him and the plaintiff. The defendant had offered explanation regarding the circumstances under which Ext.A3 happened to be executed and contended that it was not binding upon him. At any rate, according to the learned counsel, the defendant had filed an application seeking to amend the written statement which ought to have been allowed in the interest of justice. The non-consideration of the said application has caused considerable prejudice to the appellant. 9. The learned counsel for the respondent, on the other hand, pointed out that no grounds whatsoever are made out to interfere with the judgment and decree of the courts below. According to him, there is no merit in any of the contentions put forward by the appellant in view of Exts.A3 and A4, wherein the relationship between the plaintiff and the defendant stands admitted. Further, the SA 930/00 6 learned counsel referred to Ext.A6 also, wherein there is an admission of the relationship. The learned counsel went on to point out that the courts below have considered the contentions of the appellant in considerable detail and have come to the the conclusion that they are without any basis. The findings of the courts below are essentially based on evidence on record and are pure questions of fact. According to the learned counsel, no substantial questions of law arise for consideration in the second appeal and it is only to be dismissed. 10. At the outset itself, it has to be said that the submissions made by the learned counsel for the respondent are well founded. It is true that there was an attempt from the side of the defendant to deny the landlord- tenant relationship between him and the plaintiff. Both the courts below have found on the basis of Exts.A2, A3 and A6 that the said contention is without any basis. In fact, the defendant has admitted payment of rent to the agent of the plaintiff and that itself is an admission that there was SA 930/00 7 landlord-tenant relationship between them. Later, he took up a contention that the building was standing in a puramboke land. The plaintiff has produced his title deed and established that it is not so. 11. As regards the contention regarding Ext.A3 is concerned, as rightly noticed by the courts below, that is also without any basis. It appears that the defendant had put up a building adjacent to the plaint schedule building and there were some disputes between the parties and that gave rise to the filing of OS No.466/82 before the Munsiff's Court, Kollam. During the pendency of that suit, the parties decided to compromise the disputes between them and entered into Ext.A3 compromise. On the basis of Ext.A3, Ext.A2 decree was passed. 12. A reading of Ext.A3 clearly shows that the defendant has admitted the relationship between him and the plaintiff and has undertaken to pay the rent. The claim that it was brought into by fraud and coercion, is without any basis for the simple reason that the compromise is SA 930/00 8 seen attested by the counsel on behalf of the appellant. These facts persuaded the courts below to enter a finding that none of the contentions of the defendant is tenable. 13. The courts below have considered the entire matter on the basis of the evidence on record and have come to the conclusion that none of the contentions of the defendant can be accepted. The result is that no substantial questions of law arise for consideration in the second appeal. The second appeal is without any merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta SA 930/00 9