IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 SA.No. 623 of 1995 G ----------------------------------- AS.58/1992 of SUB COURT, KASARAGOD OS.219/1983 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S): APPELLANT/DEFENDANT: ----------------------------------------------------------- P. NARASIMHA SHENOI, S/O. P. LAKSHMANA SHENOI, MERCHANT, BADIADKA, KASARAGOD TALUK. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.A.PARVATHI MENON RESPONDENT(S): RESPONDENT/PLAINTIFF: --------------------------------------------------------------- K. KINHANNA RAI, S/O. DUGGAPPA RAI, RETIRED TEACHER, KALLAKATTIYA, PERDALA VILLAGE, POST PERDALA, KASARAGOD. ADV. SRI.L.GOPALAKRISHNAN POTTI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- S.A.NO. 623 OF 1995 G -------------------------------------- Dated this the 24th June, 2009 JUDGMENT Defendant in a Suit for recovery of possession of the building, is the appellant. The Suit stands decreed concurrently by both the courts below. 2. The Suit was filed by the respondent alleging, inter alia, that the plaint schedule building belongs to the respondent/plaintiff. According to the respondent/plaintiff, his mother leased out the building to the father of the appellant/defendant and it is his further case that the appellant's father attorned to the respondent and he continued as tenant. It is stated that the rent payable is Rs.15/= per month and the appellant paid rent upto 31.3.1980 and thereafter he committed default in payment of rent. The respondent/plaintiff issued Suit notice terminating the tenancy with effect from 1.4.1983. He sought to recover arrears of rent and possession of the building. S.A.NO.623/95 G 2 In the alternative, he sought to recover possession of the building on the strength of his title. The appellant contended that the respondent has no title and he is not a lessee under the respondent. There is no landlord-tenant relationship between them. It is also denied that the appellant paid rent to the respondent upto March, 1980. According to the appellant, it was from one Gowri Hengsu that his father took the building on lease in 1946 and on the death of the appellant's father, the tenancy right devolved on his legal heirs including the appellant. It was the case of the appellant that it was Gowri Hengsu who collected rent from the appellant. The trial court raised nine Issues. It had referred the matter relating to kudikidappu to the land tribunal. The land tribunal found that the appellant is in occupation of a portion of the building only and he is not entitled to the benefits of the Land Reforms Act. The trial court further found that the evidence adduced by the respondent/plaintiff to prove the landlord-tenant relationship is S.A.NO.623/95 G 3 not satisfactory. It also found that the quit notice is not valid. Thereafter, it proceeded to deal with the contention of the respondent that the plaint schedule building belongs to him. After proceeding to deal with the various contentions, it found that the appellant has shown that the respondent is the owner of the building and he is entitled to recover possession of the same. Accordingly, the trial court decreed the Suit by passing a Decree for recovery of possession of the plaint schedule building with mesne profits and interest at six per cent. The first appellate court has confirmed the findings. 3. Heard Shri M.C. Sen, learned senior counsel appearing for the appellant and Shri L. Gopalakrishnan Poti, learned counsel appearing on behalf of the respondent. Learned senior counsel for the appellant would contend that a Suit for recovery of possession by a co-owner is not maintainable without the junction of the other co-owners after coming into force of the Kerala Joint Family Abolition Act. It is to be noted that the S.A.NO.623/95 G 4 plaint schedule property is a building. The trial court has found that the plaintiff is the owner of the building. It has relied on certain records also. The trial court found that if the appellant maintained that the records produced by the respondent before the court are unreliable, he could have proved the same with reference to the original records and there was no effort on the part of the appellant to prove his contentions on the basis of the original records. The finding that the respondent is the owner of the plaint schedule building, is essentially a finding of fact. No doubt, the trial court found that the land belonged to the grand mother of the plaintiff. The grand mother had two daughters, one is the mother of the respondent/plaintiff and the other is the lady from whom the appellant claimed tenancy rights. There cannot be any quarrel with the proposition that even a Suit by one co-owner will lie without the junction of the other co- owners as any Decree that would be passed, would be treated as for the entire body of the co-owners. But, here, the finding is that the respondent is the owner of the building. What is S.A.NO.623/95 G 5 essentially assailed before me is a decision as confirmed by the first appellate court which is based on findings of fact. No substantial question of law is raised before me and the Appeal fails and it is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge S.A.NO.623/95 G 6 K.M. JOSEPH, J. S. A. NO.623 OF 1995 G JUDGMENT 24th June, 2009.