IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 AS.No. 201 of 2000(A) & Cross Objection --------------------- OS.24/1981 OF II ADDL.SUB COURT,KOZHIKODE .................... APPELLANTS/DEFENDANTS 7 TO 9: ------------------------------------------------- 1. T.D. RAJALAKSHMI, D/O. T. DAMODARAN, 38/60a, ATHANICKAL, KOZHIKODE. 2. T.D. ANITHA, D/O. T. DAMODARAN PRABHA NILAYAM, WEST KALLAI, KOZHIKODE. 3. K. SHYLESH, S/O. K. VELAYUDHAN, DO. DO. BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENTS/2ND PLAINTIFF & DEFENDTS. 3 TO 6: ---------------------------------------------------------------------------- 1. C.P. MARIYAMBI, D/O. KUNHATHABI UMMA, NAGARAM AMSOM, KOZHIKODE TALUK. 2. K.V. SANAL, S/O. K.V. RAGHAVAN, PARASSINIKADAVU, THALIPPARAMBA, KANNUR. 3. K.V. SAJID, S/O. K.V. RAGHAVAN, DO. DO. 4. K.V. SAJILA, D/O. K.V. RAGHAVAN, DO. DO. 5. K.V. SARALA, DO. DO. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 ADV. SRI.P.A.AUGUSTINE (AREEKATTEL) FOR R2 TO R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON 05/08/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO. 47/02 IN C.M.P.NO. 1745/2000 IN A.S.NO.201 OF 2000 DISMISSED 5.8.2009 SD/- M.L. JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 201 of 2000 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2009 JUDGMENT This appeal is filed by defendants 7 to 9 in O.S.No. 24 of 1981 on the file of the Sub Court, Kozhikode -II. Respondents 1 to 5 herein are the second plaintiff and defendants 3 to 6 in that suit, which was filed for eviction on the strength of title. 2. The facts of the case are briefly as follows. The plaint schedule property belonged to the plaintiffs. Originally it belonged to Pokkenchei tarwad, which was demised in favour of Chembayil Achabi and others and as per the kanom demise by registered document No.512/1928 the same was demised in favour of Chambayil Pokkutty @ Pokku, who evicted the tenants and reduced the properties into his possession. When he A.S.No. 201 of 2000 2 died, his rights were devolved upon his widow, 1st plaintiff and daughter 2nd plaintiff. They constructed a house in the plaint schedule property after obtaining necessary approval of plan and licence from Calicut Corporation and thereafter the house was rented out to the 1st defendant on a monthly rent of Rs.100/- Since they were in cordial terms, no document evidencing grant of lease, was taken by the plaintiffs from the 1st defendant. The first defendant was residing in that house with her husband - K.V. Raghavan. 3. The second defendant is another wife of late K.V. Raghavan and defendant Nos.3 to 6 are the children of K.V. Raghavan. While so, the first defendant kept the rent in arrears from 1.3.1971. So the plaintiffs filed a rent control petition as R.C.O.P. 144 of 1972 for eviction. Immediately before filing this petition, late K V Raghavan filed application for obtaining purchase certificate before the Land Tribunal Kozhikode as O.A 2225 of 1971, contending that the land was A.S.No. 201 of 2000 3 entrusted to late K.V. Raghavan and that he is a karaima tenant, as per oral karaima lease on yearly karaima rent of Rs.5/- . This application was dismissed by the Land Tribunal holding that the 1st defendant's husband has no tenancy rights over the property. 4. Thereafter the 1st defendant's husband filed another petition before Land Tribunal, Kozhikode as O.A.330 of 1972 for obtaining purchase certificate in respect of the plaint schedule property and the said application was also dismissed by the Land Tribunal. It is also incorrect to say that the building in the plaint schedule property was constructed by the 1st defendant's husband or the defendants. A rent control petition was filed as R.C.O.P. 144 of 1972, which was dismissed by the Rent Control Court observing that there is bonafide dispute of title and the parties were referred to the Civil Court. Accordingly, the plaintiffs filed a suit as O.S.2 of A.S.No. 201 of 2000 4 1974 before the Munsiff's Court-1 for eviction of the first defendant and her husband on the strength of lease. 5. During the pendency of the suit, the first defendant's husband died and his legal representatives were impleaded as supplemental defendants. When the defendants set up a plea of tenancy right as karaima, the suit was stayed u/s.125(3) of Kerala Land Reforms Act and the dispute regarding tenancy was referred to the Land Tribunal, which also ended on a finding negativing the contention of the defendants. O.S.2 of 1974 was dismissed on the ground that the terms of the oral lease could not be proved by the plaintiffs. 6. The plaintiffs have thereafter filed an appeal, A.S.154 of 1978 before the District Court, Kozhikode, which has been subsequently transferred to the IInd Additional Sub Court and numbered as A.S. 120 of 1978. O.S.2 of 1974 is not a bar to the present suit, which is filed for eviction on the strength of title. Rent in respect of the building has been kept A.S.No. 201 of 2000 5 in arrears by the first defendant from 1.3.1971 onwards. Therefore, the plaintiffs are entitled to a decree for eviction on the ground of arrears of rent. Plaintiffs restricted their claim for rent for a period of only three years immediately preceeding the date of the suit. 7. The building described in the schedule of plaint will fetch Rs.100/- per month by way of rent. Plaintiffs have applied for withdrawal of O.S.2 of 1974 while the matter was pending in appeal, with liberty to file a fresh suit on the same cause of action. That application was allowed by the Sub Judge permitting plaintiffs to sue on the same cause of action. Notice was issued to the defendants on 21.3.1977 terminating the tenancy right of the first defendant. 8. The first plaintiff died on 19.7.1998 and the first defendant also died on 24.6.1998. The second defendant also died subsequent to the filing of the suit. Defendants 3 to 6 are their children. The first defendant is the wife of deceased A.S.No. 201 of 2000 6 Raghavan and in the said wed lock he has not begotten any children. There were no other legal heirs to the deceased first defendant. Therefore, defendants 3 to 6 are to be recorded as the legal heirs of deceased first defendant. Defendants 7 to 9 are the supplemental defendants and they have not been in possession of the disputed properties. Hence they have no right to raise a plea of adverse possession or limitation. 9. The first defendant filed a written statement contending that the house in the plaint schedule property and surrounding five cents of land did not belong to the plaintiffs. They have not constructed the house. The first defendant is not in occupation of the house as a monthly tenant and she had not kept any rent in arrears. She contended that her husband had secured an oral lease of 5 cents of land in the Palattuparamba in 1969 on an annual rent of Rs.5/- and a premium of Rs.3,600/- and constructed a house with his own funds. The plaintiffs have no cause of action against the first A.S.No. 201 of 2000 7 defendant and they are not entitled to get damages for use and occupation. If the plaintiffs are entitled to get a decree for eviction, the first defendant is entitled to the value of improvements effected by her and her husband. 10. Defendants 3, 5 and 6 filed another written statement contending that the suit is not maintainable. It is false to contend that the plaintiffs constructed the disputed house and let out to the first defendant on rent. The plaint schedule building was built up by their father with the assistance of the first defendant. They contended that the first defendant is the legally wedded wife of Raghavan. On the death of Raghavan the first defendant became entitled to the house and surrounding 5 cents of property and on the death of the first defendant, under her will her rights were devolved upon supplemental defendants 7 to 9. 11. Defendants 7 to 9 filed another written statement, in which it is contended that the plaintiffs have not constructed A.S.No. 201 of 2000 8 the building. The first defendant was not a lessee under the plaintiffs. The finding in O.S.No. 2 of 1974 that the house was built by the defendant, is binding on the plaintiffs. Since the first defendant and her predecessors have been in possession of the building for more than 12 years prior to the institution of the suit, the plaintiff's title, if any, has been lost by adverse possession and limitation. The plaintiff is not entitled to any amount as damages for use and occupation. The plaintiffs have been residing in the house adjacent to the plaint schedule property and have been aware of the construction of the house by the first defendant and her husband. If the plaintiffs are entitled for a decree for eviction, these defendants are entitled to value of improvements. 12. The 7th defendant filed an additional written statement, where is it is averred that it is incorrect to say that Raghavan and the first defendants are not the owners of the building and that the building was built by the plaintiffs and A.S.No. 201 of 2000 9 let out to the first defendant on a monthly rent. It is not correct to say that Raghavan had not divorced the second defendant and the first defendant is not the lawful wife of Raghavan. The plaintiffs are not entitled to recovery of possession and defendants 7 to 9 are in possession of the plaint schedule property. 13. In the Sub Court, PW1 and DW1 were examined and Exts.A1 to A73 and B1 to B71 were marked. The learned Sub Judge, on considering the evidence, found that the plaint schedule house was constructed by the plaintiffs and the suit was decreed with cost and the defendants were directed to put the plaintiffs in vacant possession of the plaint schedule property within thirty days from the date of the judgment. The order of eviction will stand vacated, on the defendants depositing the entire arrears of rent, interests and costs within thirty days. The plaintiffs were also granted a decree for Rs.3,935/- together with interest at the rate of 6% p.a. from the A.S.No. 201 of 2000 10 date of suit till realisation with costs from the defendants and their assets. Against that judgment and decree, defendants 7 to 9 filed this appeal. 14. Heard the learned counsel for the appellants and the learned counsel for the respondents. 15. Admittedly the first defendant is the second wife of K.V. Raghavan and second defendant is his first wife. Defendants 3 to 6 are the children of second defendant and K.V.Raghavan. The first plaintiff, first defendant and the second defendant died after the filing of the suit. K.V. Raghavan died before the filing of the suit. Therefore, the main contesting parties are now no more. 16. The main contention of the first defendant and K.V. Raghavan was that the disputed property was orally leased out to K.V. Raghavan on Karaima right on payment of Rs.3,600/- as premium and on agreeing to pay Karaima rent of Rs.5/- per year. Ext.A14 is the copy of the order in O.A.No. 2225 of A.S.No. 201 of 2000 11 1971 on the file of the Land Tribunal, Kozhikode, which shows that the application filed by K.V. Raghavan claiming karaima right over the disputed property was dismissed by the Land Tribunal on finding that he has no tenancy right over the property. Another application filed by K.V. Raghavan before the Land Tribunal, Kozhikode as O.A.No. 330 of 1972 for getting purchase certificate was also dismissed by the Land Tribunal. In view of these orders of the Land Tribunal, the defendants cannot contend that the first defendant and K.V. Raghavan constructed the plaint schedule building on the basis of karaima arrangement. 17. The learned counsel for the appellants invited my attention to the decision reported in Appukuttan v. Vasu (1978 KLT 776), in which it was held that in a decree of eviction passed by the Civil Court under Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, the tenant can evade eviction by recourse to the protection under Section A.S.No. 201 of 2000 12 11(2)(c) by deposit of arrears of rent. In the present suit, such a type of decree is passed by the learned Sub Judge. 18. The learned counsel for the appellants relied on the decision reported in P.M. Jacob v. The Executive Officer, Mulanthuruthy Panchayat (AIR 1981 Kerala 233) and argued that the plaint schedule building is a work of permanent character and as such the defendants cannot be evicted from that building, as it can be treated as an irrevocable licence coming under the purview of Section 60 (b) of the Easement Act. But the contesting defendants have no case that the first defendant and K.V. Raghavan constructed the plaint schedule building on the basis of the licence given by the plaintiffs or other persons for construction of that building. 19. The learned counsel for the appellants invited my attention to the decision of the Apex Court reported in R. Rathinavel Chettiar v. V. Sivaraman ((1999) 4 SCC 89), A.S.No. 201 of 2000 13 in which it was held that withdrawal of a suit by the plaintiff after passing of a decree at the appellate stage cannot be allowed by the Court as a matter of course, when by virtue of such withdrawal, vested or substantive right of any party to the litigation will be adversely affected. 20. The plaintiffs filed R.C.O.P. 144 of 1972 before the Rent Control Court, Kozhikode for eviction of the first defendant and her husband K.V. Raghavan, which was dismissed by the Rent Control Court, observing that there is bonafide dispute of title and the parties were referred to the Civil Court. The plaintiffs filed O.S.No. 2 of 1974 before the Munsiff Court, Kozhikode-I against the first defendant and K.V. Raghavan and others for recovery of possession of the plaint schedule building with arrears of rent. 21. Ext.A3 is the copy of the judgment in that suit, which shows that the suit was dismissed on finding that the case of the plaintiffs that they constructed the building and had A.S.No. 201 of 2000 14 entrusted the same to the defendants is not true and that the evidence clearly shows that the building was built by the defendants. Against that judgment and decree, the plaintiffs filed an appeal before the District Court, Kozhikode, which was transferred to the Sub Court, Kozhikode, as A.S.No. 120 of 1978. As per the judgment in that appeal dt.17.12.1980, the appellants were permitted to withdraw the suit, with liberty to file a fresh suit on the same cause of action for recovery of possession of the property from the respondents subject to payment of cost of Rs.100/- 22. Against that judgment, the first defendant filed C.R.P.No. 58 of 1981 before this Court, which was dismissed. Ext.A6 is the copy of that order. Against that order, the first defendant filed Civil Appeal No.2022 of 1981 before the Honourable Supreme Court, which was dismissed for default. Ext.A7 is the copy of that order. Therefore, the order in A.S.No.120 of 1978 allowing withdrawal of O.S.No. 2 of A.S.No. 201 of 2000 15 1974 has become final. Therefore, the appellants cannot contend that the present suit based on title is barred. 23. It is well settled principle that in a suit based on title, the plaintiff can succeed only on the strength of his own title and not on the weakness of the defendant's title. In the present case, the title to the property, in which the plaint schedule building is situated, is not disputed by the defendants. The main dispute is with regard to the title to the plaint schedule building. According to the plaintiffs, they constructed the plaint schedule building and rented out that building to the first defendant. Whereas, the first defendant contends that the plaint schedule building was constructed by the first defendant and her husband K.V. Raghavan. There is no document to show that the plaintiffs rented out the plaint schedule building to the first defendant. There is also no document to show that the plaintiffs permitted the first A.S.No. 201 of 2000 16 defendant and her husband to construct the plaint schedule building. 24. The husband of the second plaintiff is examined as PW1. PW1 deposed that the plaint schedule building was constructed by the plaintiffs in 1970. Exts.A12 series and A13 series are the building permit and plan issued by the Calicut Corporation in favour of the plaintiffs. PW1 deposed that the plaintiffs applied for permit after construction of the building, when the Corporation authorities told them that the building was constructed unauthorisedly. Exts.A16 to A19 are the cash receipts issued by Calicut Co-operative Urban Bank Ltd. on 12.10.1970 and 14.10.1970 showing that the plaintiffs availed a loan. According to the plaintiffs, that loan amount was used for the construction of the plaint schedule building. 25. Ext.A20 is a letter dt.21.12.1971 issued by the Junior Engineer of the Kerala State Electricity Board A.S.No. 201 of 2000 17 informing the plaintiffs that there is no bar in giving electric connection to the first defendant, though she is a tenant. Exts.A22 and A23 are the building tax receipts obtained by the plaintiffs in the year 1974, while the cases between the parties were pending. 26. The 7th defendant was examined as DW1. She is the sister of the first defendant. She deposed that the plaint schedule building was constructed while she was studying in VIth standard. The first defendant and K.V. Raghavan, who are the most competent persons to give evidence regarding the construction of the plaint schedule building, are no more. DW1 deposed that she saw the first defendant and her husband paying wages to the labourers when she went to the house of the first defendant. 27. Exts.B3 to B13 are receipts issued to K.V. Raghavan, husband of the first defendant, by Steel and Wood Vasundhara Industrial Compound. The description of the A.S.No. 201 of 2000 18 article is not shown. Exts.B14 to B18 are also similar bills. Ext.B30 is a bill for cement issued to Prabhavathy. Exts.B22 to 29 are similar bills. Ext.B30 is issued to K.V. Raghavan for Rs.239.72 by Associated Engineering Corporation. Ext.B33 is the printed copy of an invitation by Mrs. and Mr.K.V. Raghavan for the tea party in connection with the house warming of the house 'Prabha Nilayam', describing the plaint schedule property by its original name and address. 28. The learned counsel for the first respondent/ plaintiff pointed out that even tenants now-a-days christen their rented house by a name of their choice, which does not guarantee that the house is built by them. Exts.B34 to 45 are different bills issued to Raghavan. Ext.B46 is the bill for printing the invitation card. Exts.B47 to B55 are also similar bills. Ext.B57 is a stamped receipt dated 4.10.1971 issued by Corporation of Calicut for payment of licence fee for the house and leach pit in Ward No.14 by K.V. Raghavan, 'Prabha A.S.No. 201 of 2000 19 Nilayam'. Ext.B61 is a memo issued to K.V. Raghavan by the Corporation office to produce documents to prove his right over the land for considering the application for permission for construction of a latrine. Ext.B62 is the chalan for payment of licence fee to the Corporation of Calicut for construction of compound wall. 29. Section 74 of the Kerala Land Reforms Act (for short the Act) prohibits creation of tenancy in respect of land on and from 1.4.1964 and any tenancy created in contravention of the said provisions shall be invalid. Deemed tenants under the other provisions of the Act are under the prohibition of Section 74 of the Act. After the commencement of the Kerala Land Reforms Act, it is not reasonable to think that the plaintiffs allowed the first defendant and her husband to construct a house of their own without executing any document. As rightly observed by the Sub Judge, K.V. Raghavan was in dire need of an abode as he had another A.S.No. 201 of 2000 20 lawfully wedded wife and four children. In these circumstances, the first defendant and K.V. Raghavan might have helped the plaintiffs in constructing the plaint schedule building by purchasing building materials. That does not mean that the plaint schedule building belongs to the first defendant and her husband. In that view of the matter, the learned Sub Judge is justified in finding that the plaint schedule building was constructed by the plaintiffs and rented out to the first defendant as alleged by the plaintiffs for a monthly rent of Rs.100/- 30. The first defendant has no case that she had paid arrears of rent claimed by the plaintiffs. Since the first defendant was residing in the plaint schedule building with the permission of the the plaintiffs, she cannot claim adverse possession. The defendants cannot claim value of improvements, as the plaint schedule building was constructed by the plaintiffs. Therefore, I am of the view that the learned A.S.No. 201 of 2000 21 Sub Judge is perfectly justified in decreeing the suit in the light of the evidence on record. The result is that the appeal is liable to be dismissed, as it is without any merit. 31. Accordingly, this appeal is dismissed. The judgment and decree in O.S.No. 24 of 1981 on the file of the Sub Court, Kozhikode-II is confirmed. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm