IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 RSA.No. 1070 of 2011() ---------------------- AS.62/2009 of ADDL.DISTRICT COURT,KOTTAYAM OS.291/2007 of PRL MUNSIFF COURT, KOTTAYAM .................... APPELLANT/2ND RESPONDENT/2ND DEFENDANT: -------------------- M.K.SABU, AGED 50 YEARS, S/O. KUTTAPPAYI, PULIVELINALAYIL HOUSE, VELLOOR KARA VELLOOR VILLAGE, KOTTAYAM WEST, KOTTAYAM-3. BY ADV. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENTS/APPELLANT/PLAINTIFF: --------------- 1. MARIAMMA PAUL, AGED 75, W/O. T.A.PAUL, (THE DECEASED ORIGINAL PLAINTIFF), THAYAPARAMBIL HOUSE, NAGAMPADAM BHAGOM, NATTASSERY P.O. PERUMBAIKKADU VILLAGE KOTTAYAM TALUK PIN 686 006. 2. PAUL CRISANTH, AGED 54, S/O. LATE T.A.PAUL, THAYAPARAMBIL HOUSE, NAGAMPADAM BHAGOM NATASSERY P.O PERUMBAIKKADU VILLAGE KOTTAYAM TALUK PIN 686 006. 3. PAUL CRISANTH, AGED 21, S/O, PAUL CRISANTH (2ND APPELLANT) THAYAPARAMBIL HOUSE, NAGAMPADAM BHAGOM, NATASSERY P.O. PERUMBAIKKADU VILLAGE KOTTAYAM TALUK, PIN 686 006 REPRESENTED BY FATHER AND GUARDIAN OF 2ND APPELLANT. 4. CHARLES PAUL, AGED 52, S/O. LATE T.A.PAUL, THAYAPARAMBIL HOUSE, NAGAMPADAM BHAGOM, NATASSERY P.O. PERUMBAIKKADU VILLAGE, KOTTAYAM PIN 686 006. RSA 1070/2011 5. PAUL GEORGE, AGED 50, S/O. LATE T.A.PAUL, THAYAPARAMBIL HOUSE, NAGAPADAM BHAGOM NATASSERY P.O. PERUMBAIKKADU VILLAGE KOTTAYAM TALUK PIN 686006. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1070 of 2011 ............................................ DATED THIS THE 22nd DAY OF SEPTEMBER, 2011 JUDGMENT Second defendant in O.S.291 of 2007 on the file of Munsiff Court, Kottayam is the appellant. Respondents are the plaintiffs. The suit was filed for recovery of possession of the plaint schedule building contending that the plaint schedule building was obtained on lease by the husband of the deceased first defendant on rental arrangement. Subsequently, the lease was surrendered. Pradeep M.Rajappan, the son of the first defendant thereafter obtained it on lease on 26.11.1996. Later, he surrendered the building on 30.1.2002. Defendants are trespassers who are in illegal possession of the building. Therefore respondents sought a decree for recovery of possession of the plaint schedule building. 2. First defendant did not contest the suit and remained exparte. Appellant raised a contention that the suit is not maintainable as first defendant is a tenant entitled to the benefit of the Kerala Building (Lease and Rent Control) Act alleging that RSA 1070/2011 2 there was no surrender of lease by Pradeep M.Rajappan. 3. Learned Munsiff on the evidence found that respondents did not establish the surrender of lease by Pradeep M Rajappan and on the death of Pradeep.M Rajappan, his tenancy rights, which is inheritable, devolved on the mother, the first defendant and therefore the suit will not lie. Suit was dismissed. 4. Respondents challenged the decree before District Court, Kottayam in A.S.62 of 2009. Learned Additional District Judge found that, though on the death of Pradeep M Rajappan, the tenancy rights devolved on the first defendant, first defendant subsequently died without any legal heir during the pendency of appeal and therefore respondents are entitled to a decree for recovery of possession as second defendant has no right to continue in possession of the building. The appeal was allowed and a decree for recovery of possession was granted. It is challenged in the second appeal. 5. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that when the suit was instituted, first defendant was alive. When the first appellate court found that Pradeep M.Rajappan was a building tenant RSA 1070/2011 3 entitled to the protection of Kerala Building (Lease and Rent Control) Act at the time of his death and the mother inherited the tenancy right on the death of Pradeep M. Rajappan, only a petition under Section 11 of the Act 2 of 1965 will lie and the civil court has no jurisdiction to grant a decree for eviction and first appellate court therefore should not have granted the decree. 6. The suit was filed on the contention that before the death of Pradeep M.Rajappan, he had surrendered the tenancy right and thereafter he trespassed into the room and committed suicide. Courts below on the evidence found that there was no surrender of lease by Pradeep M Rajappan and he was a building tenant and on his death, the tenancy right devolved on his legal heir, the mother, first defendant. It is for that reason, trial court dismissed the suit holding that only a petition under Section 11 of the Kerala Act 2 of 1965 will lie. First defendant died during the pendency of the appeal. First defendant in fact did not contest the suit. First defendant has no case that she is continuing in possession of the building as a tenant. Second defendant who has no legal right whatsoever alone resisted the suit contending that only a petition under Section 11 of the Kerala Act 2 of 1965 will RSA 1070/2011 4 lie. 7. When appellant, the second defendant is not the legal heir of either Pradeep M Rajappan the original tenant or his mother the first defendant, the statutory tenant, and the appellant is in possession of the building, he is not entitled to claim protection of Kerala Act 2 of 1965 and so suit will not lie. The position would have been different if appellant is one of the legal heirs of deceased Pradeep M.Rajappan. Appellant has no legal right to continue in possession of the building. When appellant is an absolute stranger, who has no right to continue in possession of the building, I do not find any substantial question of law involved in the appeal. 8. Learned counsel appearing for the appellant then submitted that as appellant has been conducting the business in the building, reasonable time may be granted to surrender possession of the building. Learned counsel sought six months time. Considering the fact that he has been conducting business in the plaint schedule building, if appellant files an affidavit before the trial court within two weeks from today, unconditionally undertaking to surrender vacant possession of the building and RSA 1070/2011 5 also deposits Rs.6000/-, the decree shall not executed for a period of three months from today if not so far executed. But appellant is liable to deposit Rs.500/- per month for the said three months. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk