IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 RSA.No. 136 of 2004() --------------------- AS.168/2000 of II ADDL.SUB COURT,KOZHIKODE OS.440/1989 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANT/IST APPELLANT/IST DEFENDANT --------------------------------------------------------- N.K.SURENDRAN, S/O.NADUKKANDY CHANDAPPAN, ELATHUR AMSOM AND DESOM, KOZHIKODE. BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL SAJEENDRAN RESPONDENT(S): R1, R2 AND R3 APPELLANT PLAINTIFF AND D2 & 3 ----------------------------------------------------------- 1. V.V.UMMER, S/O.ALIKKUNHI, VYSYATHUM VEETTIL, ELATHUR AMSOM AND DESOM. 2. N.K.BHASKARAN, S/O.NADUKANDY CHANDAPPAN, ELATHUR, KOZHIKODE. 3. N.K.BABU, S/O.NADUKANDY, CHANDAPPAN, CHEELATHU HOUSE, PUTHIYANIRATHU, ELATHUR, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.136 OF 2004 --------------------------------------------- Dated 11th July, 2011 JUDGMENT First defendant in O.S.440/1989 on the file of Additional Munsiff Court-I, Kozhikode is the appellant. First respondent is the plaintiff and other respondents, the other defendants in the suit. Plaint A schedule property admittedly originally belonged to Chekkutty. Under Ext.A1 assignment deed, admittedly it was assigned in favour of the first respondent. Plaint B schedule building situate in the plaint A schedule property was obtained on rent by deceased Chandappan from Chekkutty. On the death of Chandappan, appellant, respondents 2 and 3, his legal heirs are the tenants. Plaint C schedule RSA 136/04 2 property is portion of plaint A schedule property, which according to the first respondent was trespassed upon by the appellant and respondents 2 and 3, wherein a bathroom and latrine were constructed two weeks earlier to the institution of the suit. The suit is for permanent prohibitory injunction restraining the appellant and respondents 2 and 3 from committing further trespass and also recovery of possession of plaint C schedule property, alleging that it was unlawfully reduced into their possession by appellant, respondents 2 and 3. First respondent admittedly earlier filed R.C.P.71/1983 for an order of eviction of appellant, respondents 2 and 3 from the plaint B schedule building on the ground of arrears of rent and bonafide need under Section 11(2) and 11(3) of Kerala Act 2 of 1965. Under Ext.A3 RSA 136/04 3 order dated 20/7/1985, the R.C.P was allowed under Section 11(2)(b) of Kerala Buildings (Lease and Rent Control) Act. The order of eviction was subsequently vacated on deposit of arrears of rent under Section 11(2)(c). First respondent instituted the suit contending that appellant, respondents 2 and 3 trespassed into plaint C schedule property and constructed a bathroom and a latrine and they have no right over plaint schedule property and therefore, he is entitled to recover possession of the same. Appellant resisted the suit contending that the bathroom and latrine are necessary amenities for the enjoyment of the tenanted building and at the time of lease itself, the latrine and bathroom were in existence and were provided and those structures were constructed using cadjan leaves RSA 136/04 4 which are to be repaired annually. Later for the purpose of marriage of the appellant, permission was sought for and granted, to carry out the repair and to attend the painting work on the plaint B schedule building. It was carried out. The cadjan leaves are to be repaired annually. The structures in the plaint schedule property are not new constructions. The suit was instituted immediately after the annual repair and a commission was also taken out. The Commissioner reported that the structures are recent, finding the annual repair. First respondent is not entitled to the decree for recovery of possession of plaint C schedule property. 2. Learned Munsiff after trial, originally dismissed the suit. It was challenged before District Court, Kozhikode in RSA 136/04 5 A.S.166/1994. Learned District Judge remanded the suit for fresh disposal, holding that though bathroom and latrine are essential, for living in the plaint B schedule building, the question for consideration is whether those structures were in existence on the date on which the plaint B schedule building was let out to the father of the appellant and whether those structures form part of the tenancy arrangement. As this question was not considered by the Munsiff, the suit was remanded granting opportunity to the parties to adduce further evidence. Learned Munsiff thereafter held that evidence of PW1 coupled with Exts.A1 to A4 establish that the bathroom and latrine were newly constructed by committing trespass and if they were in existence earlier, they would have been found a RSA 136/04 6 place in Ext.A1 assignment deed and as it is not mentioned, it is clear that the structures noted by the Commissioner are new constructions and held that first respondent is entitled to the decree for recovery of possession of plaint C schedule property, after demolishing the structures. Appellant challenged the judgment before Second Additional Sub Court, Kozhikode along with the second defendant. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. 1) Whether the disputed structures described in the plaint C schedule being, RSA 136/04 7 appurtenant to the building described in the B schedule to the plaint are not part of B schedule building let out to the predecessor-in-interest of the defendants ? 2) Whether in the facts and circumstances of the case the decree granted by the court below will not amount to interfere with the amenities of the defendants, who are tenants of the building described in the B schedule to the plaint ? 4. Though notice was sent to first respondent, it was returned as he left India. Thereafter substituted service by paper publication in Mathribhumi daily was ordered and it was effected. Still first respondent did not appear. Learned counsel appearing for the appellant was heard. RSA 136/04 8 5. Learned counsel pointed out that for residing in the plaint B schedule building, a latrine and bathroom are essential and there cannot be a lease of residential building without these primary amenities and courts below were not justified in holding that the amenities were not available at the time of the lease. Learned counsel pointed out that lease was admittedly granted by Chekkutty, the then owner of the property and first respondent is only an assignee from Chekkutty later in 1979 and father of the appellant, obtained the plaint B schedule building in 1960 and since then have been using the amenities and in such circumstances, evidence of PW1 that bathroom and latrine in the plaint C schedule property were not in existence at the time of the lease should not have been relied on. Learned RSA 136/04 9 counsel also argued that if the explanation given by PW1 that those amenities were available, at another place outside plaint A schedule property belonging to the then owner Chekkutty is true, first respondent could have pointed out those structures to the Commissioner when he inspected the property and as no such structure was pointed out, it is clear that the bathroom and the latrine were those in the plaint C schedule property which were existing at the time of the lease. Learned counsel also argued that when the rent control petition was filed for eviction of the tenant from the tenanted building which includes the appurtenant land and structures like bathroom and latrine, there was no necessity to specifically show the existence of the bathroom or latrine and there was no RSA 136/04 10 necessity for the tenants to plead that the tenanted building includes the bathroom and the latrine situated in the plaint C schedule property as they form integral part of the lease and in such circumstances, failure to disclose those structures in the rent control petition is not a ground to hold that plaint C schedule structures were constructed later by the tenants. Learned counsel also argued that it is the very case of the appellant that structures, which was originally existing, were constructed using cadjan leaves and those structures have to be repaired annually and the suit was instituted and the Commission was taken out immediately after such repair and it is for that reason the Commissioner reported that those structures were aged only 15 days and on that basis courts below were not RSA 136/04 11 justified in holding that the bathroom and the latrine in plaint C schedule property were constructed by the appellant first prior to the institution of the suit after committing trespass. 6. Learned District Judge while remanding the suit to the trial court for fresh disposal in A.S.166/1994 specifically directed the trial court to consider, whether the disputed bathroom and latrine were in existence on the date of the lease, holding that they are essential amenities for the residing in the plaint B schedule building. First respondent has no case that while Chekkutty granted the lease in favour of Chandappan, the predecessor- in-interest of the appellant, the amenities of a bathroom and latrine were not provided to the tenant. The only explanation offered by the RSA 136/04 12 first respondent, as PW1, was that those amenities were not available in the plaint A schedule property but outside that property. As rightly pointed out by the learned counsel appearing for the appellant, if that case is true, when the Commissioner inspected the property, the first respondent could have pointed out the said amenities namely, bathroom and latrine, which were in existence outside the plaint A schedule property as claimed by him. The very fact that no such structure was pointed out probablise the case of the appellant that apart from the bathroom and latrine in the plaint C schedule property, no other bathroom or latrine was in existence for the use of the tenant to whom the plaint B schedule building was let out by Chekkutty. It is more so, when there is no case for the RSA 136/04 13 respondent that bathroom and latrine do not form part of tenanted premises. 7. Though the courts below found that as existence of the bathroom and latrine were not mentioned in the rent control petition and appellant did not plead that those structures were also granted on lease, the bathroom and the latrine in the plaint C schedule property were constructed later. I cannot agree. I find no necessity for a tenant to plead that apart from the building from which the tenant is sought to be evicted, that there is a bathroom and latrine, which form part of the lease. If eviction is ordered, along with tenanted building, tenant is to vacate the appurtenant land and structures like the bathroom and latrine, without a specific order of eviction in respect of those structures. The tenant RSA 136/04 14 cannot continue in possession of the bathroom and latrine, in case of eviction, for the reason that the rent control petition does not disclose those structures. In such circumstances, even though those structures were not mentioned in the rent control petition, there was no necessity for the tenant to plead that the building obtained includes the bathroom and latrine outside the building. Hence, finding of the courts below, based on the non mentioning of bathroom and latrine in rent control petition is not a ground to hold that the bathroom and latrine were not in existence at the time of lease. Similar is the case with the assignment deed obtained by the respondent. The other circumstance, relied on by the courts below is freshness of the structures found in the plaint C schedule RSA 136/04 15 property at the time when Commissioner inspected the property. Report of the Commissioner to the effect that “one bathroom looks newly thatched having 4 x 4 feet and height of 7 feet and one latrine looks new with thatched having 4 x 4 feet and height of 7 feet from the western corner of the house”. Evidently, the Commissioner found them new because of the recent thatching of the structures. Even though those structures were old, if using cadjan leaves they were thatched, the Commissioner could only report that they are new thatched structures. That does not mean that the structures were not in existence earlier. When it cannot be denied that a tenant cannot live in the plaint B schedule building, without a bathroom and a latrine and when it is RSA 136/04 16 not shown that any other bathroom or latrine exists, so as to enable the tenant to use the same, the only inference that could be drawn is that the existing bathroom and latrine found in the plaint C schedule property were in existence even at the time of granting of lease. If that be so, courts below were not justified in granting recovery of possession to the plaint C schedule property. Hence the decree can only be set aside. Appeal is allowed. Decree for recovery of possession of plaint C schedule property in O.S.440/1989, on the file of Additional Munsiff court,-I, Kozhikode as confirmed by Second Additional Sub court, Kozhikode in A.S.168/2000 is set aside. The suit stands dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.