IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 SA.No. 761 of 2000(G) ------------------------------- AS.252/1996 of SUB COURT, NEDUMANGAD OS.71/1995 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/RESPONDENT/DEFENDANT ---------------------------------------------------------- PREMARAJAN, SON OF RAMU PANICKER, THADATHARIKATHU VEEDU, KUNNUMPARA, PANTHAPLAVU MURI, KARAKULAM VILLAGE, FROM KUMPILAVILA PUTHEN VEEDU, CHETTIVILAKOM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.K.SATHEESH KUMAR SRI.T.A.UNNIKRISHNAN RESPONDENT(S)/APPELLANTS/PLAINTIFFS: --------------------------------------------------------------- 1. SUBRAMONIA IYER, S/O.VENKETESWARA IYER, VIJAYAMONI BHAVAN, KUNNAMPARA, PANTHAPLAVU MURI, KARAKULAM VILLAGE. 2. VIJAYAVARDHINI AMMAL, W/O.SUBRAMONIA IYER, -DO- -DO- R1 & R2 BY ADV. SRI.T.K.ANANDA PADMANABHAN SRI.M.S.ROY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.761/2000 ORDER ON C.M.P.NO.1977/2000 IN S.A.NO.761/2000 DISMISSED 02/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J. ---------------------------- S.A.No. 761 of 2000 --------------------------------- Dated this the 2nd day of February, 2011 JUDGMENT The defendant in O.S.71/1995 before the Munsiff's Court, Nedumangad is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit is one for eviction with arrears of rent. According to the plaintiff, the defendant took possession of two rooms belonging to him, on the northern side of his property, on a monthly rent of Rs.120/- from 08.04.1991. The defendant has kept the rooms locked for a long time and till February, 1993, he paid the rent. From March 1993 he committed default. Though plaintiff demanded vacant possession, the defendant is not amenable to vacate the rooms. Hence, the suit was laid. 3. The defendant resisted the suit. It is pointed out that he has been in occupation of the rooms for the last 23 years. The monthly rent was Rs.10/- and subsequently, which was enhanced to Rs.30/-. The rent up to August 1993 has been paid and he has obtained receipt. The defendant has not caused any damage to the building. Defendant is still conducting the business. The defendant has not defaulted the payment of rent. Hence he prayed that the suit may be dismissed. S.A.No. 761 of 2000 2 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of Exts.A1 to A9 and Ext.B1 and C1. Ext.C1 is the commissioner's report. On an appreciation of the commissioner's report the trial court non-suited the plaintiff. 5. The plaintiff carried the matter in appeal as A.S. 252/1996. The lower appellate court on reconsideration of the materials, reversed the findings of the trial court as follows: In view of the finding on above points, the appeal is to be allowed and the decree and judgment of the lower court is to be set aside and plaintiff/appellant will be entitled to get decree as follows: In the result, the decree and judgment of the lower court is set aside and the appeal is allowed. The suit is decreed directing the defendant to put the plaintiff in possession of plaint schedule shop rooms within two months and to pay arrears of rent Rs.630/- and damages for use and occupation at the rate of Rs.30/- per month from the date of suit till vacating the rooms with interest at the rate of 6% per annum. Plaintiffs are also allowed to realise their proportionate costs in the suit and appeal. 6. Notice has been issued on the following substantial questions of law: S.A.No. 761 of 2000 3 1. Is not the suit hit by the principle of resjudicata ? 2. Is Exhibit A2 notice terminate tenancy as the mandate of Section 106 of Transfer of Property Act is not complied with ? 3. If the period for termination of tenancy in the notice is more than 15 days can it be said that the mandate in Section 106 of Transfer of Property Act is complied with ? 4. In the absence of specific pleading and oral evidence, is not the lower appellate court wrong in concluding that the question of identity of the rooms is a mistake in the report of the Advocate Commissioner ? 5. s not the lower Appellate Court wrong in ordering for payment o arrears of rent, in spite of finding that the rate of rent quoted by the plaintiff is wrong ? 7. Learned counsel for appellant contended that the lower appellate court ought to have noted the mandate of Section 106 of Transfer of Property Act and so the judgment and decree of the lower appellate court is liable to be set aside. It is also pointed out that the appellate court should have found that there was no proper identification of the rooms. By no stretch of imagination the judgment of the lower appellate court can be sustained. 8. It must be said that there is absolutely no merits in the above said contentions. Regarding the plea based on notice under Section 106 of the T.P.Act is concerned in the light of Section 106(3) there is S.A.No. 761 of 2000 4 no merit in it. 9. The lower appellate court rightly noticed that the findings of the trial court suffer from legal infirmities as regards the identity of the rooms. The lower appellate court noticed that there was no dispute regarding the identification of the premises by the defendant and under the circumstances, the trial court was not justified in non-suiting the plaintiff on the ground that the rooms have not been properly identified. As noticed by the lower appellate court, the statement in the commissioner's report that the plaint schedule properties are on the southern side can only be a mistake. Both parties are aware of the rooms as well as the quantum of arrears of rent also. The definite stand of the defendant was that he had paid rent upto August 1993, he had to establish that fact. There was no attempt from his part to do so. There is no reason to take a different view. No substantial question of law arise for decision in this second appeal. In the result, this appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln