IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 SA.No. 32 of 1997(D) -------------------- AS.154/1994 of SUB COURT, PALA OS.255/1984 of MUNSIFF COURT, PALA .................... APPELLANT/RESPONDENT/PLAINTIFF: ---------------------------------------- DAISAMMA, W/O.ALEX RESIDING AT CHUVAPPUMKAL, KIZHAPRAYAR KARA, POOVARANI VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT/APPELLANTS/ DEFENDANTS: --------------- 1. VARGHESE, S/O.THOMAS PAIKKARUMKAL, POOVARANI VILLAGE, POOVARANI KARA. 2. DAIS.P.GEORGE, S/O.VARGHESE -DO- -DO- ADV. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE SRI.PHILIP M.VARUGHESE SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.PAUL KURIAKOSE THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.794/98 IN SA 32/97 DISMISSED 9/2/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.32 OF 1997 ------------------------------------------ Dated 9th February 2010 JUDGMENT Plaintiff in O.S.255/1984 on the file of Munsiff court, Pala is the appellant. Respondents are defendants 1 and 2. Appellant instituted the suit seeking a decree for recovery of possession of plaint schedule property which is 2¼ cents in survey No.379/2/5 of Puvarani village of Meenachil Taluk inclusive of the down stair building and its lean to. Case of the appellant is that under Ext.A1 rent deed, the building and its lean were rented out to the first respondent in 1972 and first respondent has been in possession of the property as a tenant on monthly rent of Rs.16/- and though period of tenancy was SA 32/97 2 one year and when the period expired, first respondent continued the tenancy on the same terms and conditions and in violation of the stipulations in Ext.A1, he sublet the building to respondents 2 and 3. By sending Ext.A2 notice tenancy was terminated and possession was demanded, but respondents did not surrender vacant possession and therefore, appellant is entitled to recover possession of the boundary with arrears of rent. 2. Respondents resisted the suit contending that the property was purchased by first respondent in the name of the appellant as benami and the property originally belonged to their mother and Ext.B1 document was executed by the mother in the name of Thomas Joseph as benami for the first respondent and later that right was transferred in the name of the appellant and it was never intended to SA 32/97 3 transfer the property in favour of the appellant and appellant did not derive any title to the property and therefore, he is not entitled to the recovery of possession sought for. It was contended that Ext.A1 rent deed was a sham and nominal document and was not acted upon as a rent deed and therefore, based on Ext.A1 the suit is not maintainable as there is no landlord-tenant relationship. 3. Learned Munsiff on the evidence of Dws.1 to 6 and Exts.A1 to A3, B1 to B12, C1 and C1(a) found that in view of Benami Transaction (Prohibition) Act, plea of benami raised by the appellant is not sustainable and therefore, granted a decree for recovery of possession as sought for with arrears of rent. Respondents 1 and 2 challenged the judgment before Sub court, Pala in A.S.154/1994. Learned Sub Judge on re- appreciation of evidence found that it is the SA 32/97 4 case of respondents 1 and 2 that Ext.A1 was only a sham and nominal document and by Ext.B1, DW2 Thomas Joseph obtained the property only by name and that alone was transferred in the name of the appellant and evidence establish that first respondent continued to be the owner of the property including the building and hence held that the appellant is not entitled to the decree for recovery of possession of the building or arrears of rent. Appeal was allowed and decree passed by the trial court was set aside and the suit was dismissed. Second appeal is filed challenging said judgment. 4. Second appeal was admitted formulating the following substantial questions of law. 1) Even assuming that the plea of benami set up by the SA 32/97 5 first defendant was not barred under the Benami Transactions (Prohibition) Act, 1988 has the first defendant discharged the burden which was on him to substantiate? 2) Have not the courts below gone wrong in not giving effect to Ext.B3 sale deed dated 11/9/1972 as per which appellant/plaintiff had valid title over the disputed property? 5. Learned Senior counsel appearing for appellant and respondents 1 and 2 were heard. 6. Learned Senior counsel argued that suit is for recovery of possession based on Ext.A1 rent deed and Ext.A1 establishes that first respondent recognising that appellant is the owner of the building, executed the rent deed agreeing to pay a monthly rent of Rs.16/- SA 32/97 6 and learned Sub Judge was not justified in dismissing the suit, as Ext.A1 establishes that first respondent obtained the building on rent. It was argued that when the contention raised was that property was produced by the first respondent as benami in the name of Thomas Joseph and that right was transferred in favour of the appellant, in view of Benami Transaction (Prohibition) Act, that plea is not sustainable and hence first appellate court should not have interfered with the decree of the learned Munsiff. 7. Learned Senior counsel appearing for respondents argued that when the suit is based on Ext.A1 alone and evidence establishes that Ext.A1 rent deed was not acted upon and it was only sham and nominal document, learned Sub Judge was justified in dismissing the suit. 8. Execution of Ext.A1 rent deed is SA 32/97 7 not disputed. Ext.A1 shows that the property originally belonged to Thomas Joseph, as per Ext.B1 assignment deed of 1969 and subsequently the property was transferred in the name of the appellant under Ext.B3 on 11/9/1972. Ext.A1 rent deed is executed on the same day. In the nature of the contentions raised, question whether under Ext.B1, appellant obtained title to the property and whether Ext.A1 was executed as a sham and nominal document are necessarily to be considered. Executent of Ext.B3, Thomas Joseph who purchased the right under Ext.A1 was examined as DW2. Evidence of DW2 establishes that he did not pay any consideration to the mother of the appellant the assignor therein for obtaining Ext.B1 sale deed. His evidence also establishes that he did not receive any consideration for executing Ext.B3 assignment SA 32/97 8 deed, in favour of the appellant. Evidence of DW2 establishes that Ext.B4 which is the same as Ext.A1, was executed not with an intention to create any landlord-tenant relationship. Evidence of Dws.3 and 4, the other tenants in the building establish that they obtained those rooms in the same building on rent from the first respondent. It establishes that first respondent was not the tenant as stated in Ext.A1/B4. As against the evidence adduced by the respondents, appellant did not adduce any evidence. She did not even face the witness box to depose that she had paid the consideration for purchasing the property or Ext.A1 was executed to obtain the building on rent by the first respondent or to deny the case of Dws.1 and 2 that the building has been in possession of the first respondent even earlier. In the light of the evidence, first appellate court SA 32/97 9 was justified in finding that Ext.A1 rent deed was not acted upon and under Ext.A1 no landlord-tenant relationship was created between the appellant and first respondent. As the suit is based only on Ext.A1 and on the basis that appellant is the landlord and first respondent is the tenant and that landlord tenant relationship was not established, first appellate court was justified in setting aside the decree granted by the trial court and dismissing the suit. I find no reason to interfere with the findings of the first appellate court. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR, JUDGE. uj.