IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 RSA.No. 1366 of 2009() ---------------------- AS.174/2006 of II ADDL.DISTRICT COURT,ERNAKULAM OS.960/2004 of III ADDL.MUNSIFF COURT & RENT CONTROL COURT, ERNAKULAM .................... APPELLANT(S)/APPELLANT/DEFENDANT NO.1: -------------------- KUTTIKRISHNAN,S/O.UNTAMAN,RESIDING AT MURIATHU HOUSE,PONNICHIRA ROAD,EDAPPALLY, CONDUCTING RATION SHOP ARD NO.87, IN SHOP NO.34/1825 OF CORPORATION OF KOCHI, AT DEVANKULANGARA,EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN SRI.P.G.JEROME RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 3 : --------------- 1. SADANANDA KAMATH,AGED 66, S/O.MADHAVA KAMATH OF KOLLAPARAMBIL CONDUCTING TEXTILE SHOP BY NAME MURALI TEXTILES, IN BUILDING NO.34/1824 OF CORPORATION OF KOCHI, AT DEVANKULANGARA,EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. (*) 2. K.KERALA VARMA,S/O.LATE DEVI OF NEDIGAL THANNUPARAMBU HOUSE, DEVANKULANGARA, EDAPPALLY NORTH VILLAGE,KANAYANNUR TALUK. (DELETED) 3. USHA VARMA,W/O.KERALA VARMA, DO-DO- (*)RESPONDENT NO.2 IS DELETED FROM ARRAY OF PARTIES AT THE RISK OF PETITIONER/APPELLANT AS PER ORDER DATED 21.1.2010 ON IA NO.189/2010 ADV. SRI.V.SANKARA RAJA FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1366 of 2009 -------------------------------------- Dated this the 21st day of January, 2010. JUDGMENT Respondent No.2 has been removed from the array of parties as per order dated 21.01.2010 on I.A.No.189 of 2009. Respondent No.3 served, but there is no response. Respondent No.1 appears through counsel. The Second Appeal is heard on admission as requested by counsel on both sides. 2. The Second Appeal arises from judgment and decree of learned Additional District Judge-II, Ernakulam in A.S.No.174 of 2006 confirming judgment and decree of learned III Additional Munsiff, Ernakulam in O.S.No.960 of 2004. Respondent No.1 filed the suit seeking a declaration of his right of tenancy over the lean-to described in the plaint schedule and for recovery of possession of the same. Respondent No.1 is a tenant of room No.34/1824 and appellant/defendant No.1 is the tenant of the adjacent room bearing door No.34/1825. Admittedly both the rooms belonged to respondent Nos.2 and 3. According to respondent No.1, when room No.34/1824 was entrusted to him the lean-to behind that room and room No.34/1825 (of which appellant is the tenant) were also entrusted to him and thus, he has leasehold right over the entire lean-to as well. It is the further case of respondent No.1 that while so, appellant trespassed into the lean-to behind room No.34/1825 and constructed a wall in between the lean-to behind room Nos.34/2824 and 34/1825 thus, RSA No.1366/2009 2 reducing the portion of lean-to behind room No.34/1825 to his possession. Hence the suit. Appellant contended that the lean-to behind room No.34/1825 formed part of the tenancy in his favour and that respondent No.1 has no right over the said portion of the lean-to. Respondent Nos.2 and 3, landlords remained exparte. Trial court found on evidence that respondent No.1 is tenant of the disputed lean-to as well and accordingly, declared his tenancy right over that portion and allowed recovery of possession. First appellate court has confirmed that finding, judgment and decree of the trial court. Hence the Second Appeal urging by way of substantial questions of law whether in the circumstances of the case courts below were justified in granting decree in favour of respondent No.1, whether there could be an attornment without any written communication when possession in claimed from a tenant who is the brother of respondent No.1 and whether in the circumstances of the case the suit brought on the basis of previous possession is barred by limitation. Learned counsel for appellant asserting the above points contended that finding entered by the courts below are not legal or proper. According to the learned counsel for respondent No.1, no substantial question of law is involved in the Second Appeal requiring its admission. RSA No.1366/2009 3 3. It is not disputed that room No.34/1824 is in the possession and enjoyment of respondent No.1. It is also not disputed that the said room was originally occupied by his brother, Muraleedharan as a tenant under respondent Nos.2 and 3. One contention raised is that in so far as respondent No.1 has not produced documents to show that he has attorned to respondent Nos.2 and 3, he cannot claim to be a tenant of room No.34/1824. It is contended by learned counsel that no lease deed has been produced by respondent No.1 to prove his tenancy. But, it is not disputed that respondent Nos.2 and 3 have acknowledged respondent No.1 as a tenant of room No.34/1824. It is pertinent to note that respondent Nos.2 and 3 did not resist the suit by filing a written statement and instead, respondent No.2 when examined as PW4 has supported respondent No.1. Hence the mere absence of any document to prove tenancy is of no consequence. 4. Crucial question is whether courts below are justified in holding that disputed lean-to formed part of entrustment in favour of respondent No.1. It is true that no document has been produced to support that claim of respondent No.1. But as I stated, respondent No.2 when examined as PW4 has supported respondent No.1 and deposed that entrustment in favour of respondent No.1 takes in not only room No.34/1824 and the lean-to behind it but also the lean-to behind room No.34/1825 of which appellant is the tenant. A further fact to be RSA No.1366/2009 4 noted is that appellant had filed O.S.No.149 of 2003 against Muraleedharan, brother of respondent No.1 and former tenant of room No.34/1824 and the lean- to behind both the rooms. In that case respondent Nos.2 and 3 were also made defendants. They filed Ext.A2, written statement supporting Muraleedharan, the then tenant. They supported the version of respondent No.1 as PW1 that he is the tenant of the entire lean-to. PW2 is a witness examined by respondent No.1 who stated about previous possession of the disputed lean-to with respondent No.1. PW3, advocate commissioner has reported that she noticed a wall in between the lean-to behind the two rooms and further that there was recent cement plastering for the wall only on the side of the room occupied by the appellant. According to the advocate commissioner that wall was recently constructed. Thus there is evidence to show that the wall was put up by the appellant recently. It is based on the above evidence that courts below came to the conclusion that the disputed lean-to formed part of entrustment in favour of respondent No.1. That finding being one on evidence on record and so far as it is not shown that the finding is perverse it does not involve any substantial question of law. 5. Yet another point raised by learned counsel for appellant is that the suit having been brought on the strength of previous possession, it ought to have been filed within six (6) months of the dispossession under Section 6 of RSA No.1366/2009 5 the Specific Relief Act and having not done that, the suit is barred by limitation. This argument also cannot be accepted since the suit for declaration of right of tenancy and recovery of possession is brought and reliefs obtained on the strength of the leasehold right of respondent No.1. 6. On going through the judgments and hearing learned counsel on both sides I do not find any substantial question of law involved in the Second Appeal requiring its admission. Resultantly, Second Appeal is dismissed in limine. I.A.No.3108 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks