IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 RSA.NO. 985 OF 2009() -------------------------------- AS.32/2008 OF SUB COURT,ATTINGAL OS.327/2006 OF MUNSIFF COURT,VARKALA .................... APPELLANT/APPELLANT/2ND DEFENDANT: --------------------------------------------------------- LEELA GOMAZ, AGED 60 YEARS, D/O.THRESIAMMA, ST.JUDE COTTAGE, A-P,(V)/135, WARD NO.5, ANCHUTHENGU DESOM, KADAKKAVOOR VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS/ PLAINTIFFS & 1ST DFENDANT: ---------------------------------------------- 1. ROBINSON, S/O.JULIET, AGED 50 YEARS, ST.JUDE COTTAGE, SANU HOUSE, SOUTH FORT, ANCHUTHENGU DESOM, KADAKKAVOOR VILLAGE. 2. SOSAMMA, W/O.ROBINSON, AGED 42 YEARS, ST.JUDE COTTAGE, SANU HOUSE, SOUTH FORT, ANCHUTHENGU DESOM, KADAKKAVOOR VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/12/2009 ALONG WITH R.S.A. NO.1217 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NOS.985 & 1217 OF 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of December, 2009 J U D G M E N T ---------------------- These Second Appeals arise from the common judgment and decree of the learned Sub Judge, Attingal in A.S. Nos.32 and 54 of 2008 confirming judgment and decree of learned Munsiff, Varkala in O.S. Nos.327 and 284 of 2006 respectively. Defendant No.2 in O.S. No.327 of 2006 who is the plaintiff in O.S. No.284 of 2006 has come up in appeal. Parties are referred to as plaintiffs and defendants in O.S. No.327 of 2006 for convenience. 2. According to the plaintiffs they purchased the suit property which takes in a building from defendant No.1 as per Ext.A1, sale deed dated 12.12.2002. As per Ext.A12, rent deed dated 29.11.2005 the building in the property was entrusted to defendant No.1 on lease on agreement to pay rent of Rs.250/- per month, with other terms and conditions. According to the plaintiffs a sum of Rs.2,750/- is in arrears for the period from 29.11.2005 to 28.10.2006. They issued Ext.A16, notice dated 17.10.2006 demanding vacant possession of the building with the rent arrears and informing defendant No.1 about violation of the terms and conditions of entrustment. Defendant No.1 admitted that he executed Ext.A1, sale deed in favour of the plaintiffs but R.S.A. NOS.985 & 1217 of 2009 -: 2 :- claimed that he acquired the property as per Ext.A15, assignment deed dated 28.8.1974 with the funds of his wife, defendant No.2. As regards execution of Ext.A12, rent deed dated 29.11.2005 defendant No.1 did not raise any contention. Defendant No.2 claimed that the property was purchased by defendant No.1 making use of her sthreedana amount and she constructed shop room in the building in the year 1976. Herself and defendant No.1 are on enmical terms since 2001 onwards. She contended that defendant No.1 executed the rent deed to cause annoyance to her. Further claim is that on the strength of Ext.B1, Power of Attorney dated 17.10.1989 executed by defendant No.1 in her favour she has entered into an agreement for sale of the said property with one Sankara Pillai and received Rs.2,50,000/-. Defendant No.2 filed O.S. No.284 of 2006 against the plaintiffs in O.S. No.327 of 2006 seeking decree for prohibitory injunction against trespass and forcible eviction. Trial court found in favour of title pleaded by the plaintiffs in O.S. No.327 of 2006, held that defendant No.1 is a tenant of the building in the suit property and accordingly ordered eviction with rent arrears. Consequently O.S. No.284 of 2006 was dismissed. That was confirmed by the first appellate court. Hence this Second Appeal. 3. Substantial questions of law raised in the memoranda of appeal are: R.S.A. NOS.985 & 1217 of 2009 -: 3 :- (i) Whether finding of the courts below that defendant No.1 was competent to execute the sale deed in favour of the plaintiffs is legally and factually correct when the property was acquired with the funds of defendant No.2? (ii) Whether courts below were justified in ordering eviction on the strength of the rent deed when defendant No.1 had no right over the building? (iii) Whether in the absence of a prayer for recovery of possession on the strength of title courts below were justified in granting eviction? (iv) Whether termination of the lease is valid under Section 106 of the Transfer of Property Act? 4. Harping upon the above questions learned counsel for appellant/defendant No.2 contended that findings entered by the courts below are not correct and that in the nature of the denial made by defendant No.2 regarding title of the plaintiffs the suit ought to have been for recovery of possession on the strength of title. It is also contended that there is no proper proof of the alleged rent deed. The further contention is that tenancy is not properly terminated. R.S.A. NOS.985 & 1217 of 2009 -: 4 :- 5. So far as Ext.A1 is concerned its execution is not denied by defendant Nos.1 and 2, contention of defendant No.2 being that property was purchased as per Ext.A15 by defendant No.2 making use of her sthreedana amount. Defendant No.1 when examined as D.W.1 stated that acquisition as per Ext.A15 was making use of the funds of his wife (defendant No.2) but he admitted that there is no evidence to support that plea of his. There is no mention in Ext.A15 that the sale consideration came from defendant No.2. When defendant No.2 was examined as D.W.2 she admitted that defendant No.1 transferred the property belonging to him. As regards the contention that funds for acquisition of the property as per Ext.A15 came from defendant No.2 is concerned what is available is only the version of defendant Nos.1 and 2. I do not forget that they are on enmical terms and living separately. But even that is only from the year 2001 as the pleading of defendant No.2 goes. In the absence of any acceptable evidence courts below are justified in holding that the said contention of defendant No.2 as to the sale consideration for acquisition of the suit property as per Ext.A15 is not proved. 6. Then the question is whether plaintiffs were justified in seeking eviction on the strength of rent deed rather than suing for recovery of possession on the strength of title. Exhibit A12, as aforesaid is the rent deed. So far as that rent deed is concerned, as R.S.A. NOS.985 & 1217 of 2009 -: 5 :- against the specific averment in the plaint that it was executed by defendant No.1, there is no mention about that in the written statement filed by defendant No.1 which fact he candidly admitted when examined as D.W.1. When the averment in the plaint is not denied in the written statement it must be taken as admitted. Moreover contention raised by defendant No.2 is not that Ext.A12 was not executed by defendant No.1 but that it was executed by defendant No.1 to cause annoyance to her on account of her estranged relationship with defendant No.1. In other words defendant No.2 also has not disputed Ext.A12. When D.W.1 was in the box he denied that he signed Ext.A12. But that denial cannot be taken on face value – firstly he has not denied Ext.A12 in the written statement and secondly it is seen that even the signatures in the acknowledgment cards as per which notices were served on him were denied and disputed by him. Therefore there is no merit in the denial of the signature in Ext.A12 made by defendant No.1. Plaintiff No.1 has given evidence as to the execution of Ext.A12 and proved the same. R.S.A. NOS.985 & 1217 of 2009 -: 6 :- 7. Learned counsel contends that Ext.A1 is the sale deed dated 12.2.2002 and Ext.A12 is the rent deed dated 29.11.2005 but there is no explanation about the residence if any of defendant Nos.1 and 2 in the building in question during the period intervening. That is of no relevance in the case now that plaintiffs are seeking eviction on the strength of Ext.A12. 8. Other contention raised by defendant No.2 is that on the strength of Ext.B8 (Power of Attorney) executed by defendant No.1 in her favour on 17.10.1989 she has entered into an agreement for sale of the suit property with one Sankara Pillai. Question whether Sankara Pillai has acquired any right based on the agreement for sale if any, is not a matter relevant for consideration in these cases. I must also bear in mind that it is notwithstanding Ext.B8, Power of Attorney dated 17.10.1989 that defendant No.1 admittedly executed Ext.A1, sale deed in favour of the plaintiffs on 12.12.2002. 9. Another question raised is whether there is valid termination of lease under Section 106 of the Transfer of Property Act (for short, “the Act). Exhibit A12 shows that the lease was for a period of 11 months from 29.11.2005 and Ext.A16, notice shows that it was issued on 17.10.2006, i.e., on the expiry of period of lease mentioned in Ext.A12. Moreover at least in evidence defendant Nos.1 and 2 have denied title of plaintiffs. When title is denied lessee cannot insist R.S.A. NOS.985 & 1217 of 2009 -: 7 :- upon notice of termination of tenancy under Sec.106 of the Act as held in Kunjamma Ooman v. Mariamma (1969 KLR 423). Plaintiffs have alleged that defendant No.1 has violated terms and conditions of the rent deed and as I stated earlier, termination comes on the expiry of the period of lease mentioned in Ext.A12. It is also not shown that termination of the tenancy as per Ext.A16 is invalid for any reason. At any rate circumstances stated above amounts to a contract to the contrary as referred to in Sec.106 of the Act which dispensed with notice of termination of tenancy. Courts below considered the evidence on record and found that plaintiffs in O.S. Nos.327 of 2006 are entitled to get eviction of defendants with rent arrears. Consequence of that is a dismissal of O.S. No.284 of 2006. Having gone through the judgment under challenge and hearing counsel for appellant/defendant No.2, I do not find any substantial question of law involved in these Second Appeals. Second Appeals are dismissed in limine. Interlocutory Application No.2992 of 2009 in R.S.A. No.985 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NOS.985 & 1217 of 2009 -: 8 :- THOMAS P.JOSEPH, J. =================== R.S.A. NOS.985 & 1217 OF 2009 =================== J U D G M E N T 15TH DECEMBER, 2009