IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 RSA.No. 894 of 2009() --------------------- AS.34/2008 of II ADDL.SUB COURT,ERNAKULAM OS.770/1999 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTS/ APPELLANTS/DEFENDANTS 1 TO 7 -------------------- 1. K.BALAKRISHNAN, AGED 68 YEARS, S/O. LATE KRISHNANA PILLAI, CHANDRA VILASAM, LALITHA NIVAS, RAMANAGALAM KARA, MARADY VILLAGE. 2. K. RAMACHANDRAN, AGED 71, S/O. A.K. KRISHNA PILLA, CHANDRA VILASAM, LALITHA NIVAS, RAMAMNGALAM KARA, MARADY VILLAGE. 3. K. GOPINATHAN, AGED 65 S/O. A.K. KRISHNAPILLA, SANKARAMANGALAM VAZHAPILLUKARA, VELLORKUNNAM VILLAGE. 4. K. OMANA, AGED 58 D/O. A.K. KRISHNAPILLA, CHANDRA VILASAM, RAMANGALAM KARA, MARADY VILLAGE. 5. K.CHANDRIKA, AGED 48 D/O. A.K. KRISHNAPILLA,CHANDRA VILASAM, RAMAMANGALAM KARA, MARADY VILLAGE. 6. K. NARAYANAN NAIR, AGED 60 S/O. A.K. KRISHNAPILLA, CHANDRA VILASAM,RAMAMANGALAM KARA, MARADY VILLAGE. 7. K. RADHA, AGED 62, D/O.A. KRISHNA PILLA, CHANDRA VILASAM, RAMANGALAM KARA, MARADY VILLAG. BY ADV. SRI.A.P.SUBHASH SRI.M.A.ABDUL SHUKOOR SMT.T.SUJA SRI.PRAJEESH.A. -2- RSA.NO.894/2009 RESPONDENTS/ RESPONDENT & APPELLANTS 8 TO 10/PLAINTIFF & DEFENDANTS 8 TO 10 1. MUVATTUPUZHA KSHEERAVYAVASYA SAHAKARANA SANGAM LTD.. NO.-117, VELLORKONAM KARA, VELLORKONAM VILLAGE, MUVATTUPUZHA TALUK, REPRESENTED BY ITS SECRETARY. 2. USHA RAJAN, W/O.RAJAN, AGED 50, ADHIRA HOUSE, ALIYATTIKONAM, MALAYINKEEZHU, THIRUVANANTHAPURAM. 3. ANI, S/O.RAJAN, -DO- -DO- 4. BINU, S/O. RAJAN, -DO- -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.894 OF 2009 --------------------------- DATED THIS THE 26TH DAY OF AUGUST, 2009 JUDGMENT Defendants 1 to 5 and 7 and 8 in O.S.No.770/99 on the file of the Munsiff's Court, Muvattupuzha are the appellants. This appeal is directed against the judgment and decree in A.S.No.34/2008 on the file of the IInd Additional Sub Court, Ernakulam. The suit was filed for recovery of immovable property and for damages. The suit was decreed by the trial court and confirmed in appeal. Hence, this second appeal. 2. Defendants 1 to 8 are the tenants of the plaint schedule building. They are the legal heirs of the original tenant. Monthly rent paid was Rs.50/-. Ext.A6 is the notice issued by the landlord calling upon the defendants to surrender vacant possession of the plaint schedule room. The defendants contested the suit. They contended that their father was the original tenant, that he filed R.C.P.No.20/82 before the Rent -2- R.S.A.No.894/2009 Control Court for evicting the sub-tenant, which was allowed and the Amin visited the petition schedule room for effecting delivery. The 3rd executant of Ext.A2 obstructed the delivery and filed an application before the execution court. The defendants filed an application for removal of the obstruction. The execution court dismissed the said application. Subsequently, after remand, the same was allowed and ordered to effect delivery. Accordingly, delivery was effected. The learned counsel contended that the suit is barred by Section 47 C.P.C. 3. Ext.A2 is the sale deed executed by the landlords in favour of the plaintiff-Society conveying their title. The trial court noted that the 3rd executant of Ext.A2 did not raise any claim as the landlord in E.P.No.15/85 before the execution court and not obstructed delivery in her capacity as one of the landlord and even if it is so, the claim in the capacity of the landlord need not be considered, since it was not necessary for the purpose of adjudication of the application for removal of obstruction. An -3- R.S.A.No.894/2009 obstructer can file an obstruction petition claiming independent right, which is a rival claim to the title set up by the judgment debtor. Even if the 3rd executant in Ext.A2 filed any petition, she was not claiming any independent rival title as against the judgment debtor in the earlier suit between the tenant and the sub-tenant. In fact as a landlord of the decree holder neither the 3rd executant nor any other landlords need file any application obstructing delivery. In fact, delivery was effected as against the sub-tenant at the instance of the tenant. Therefore, the trial court rightly held that the suit is not barred by the provisions of Order XXI Rule 101 C.P.C and Section 47C.P.C. Repelling all other contentions, the trial court held that the plaintiff is entitled to recover possession of the plaint schedule room from the defendants. The plaintiff has claimed damages for use and occupation of the plaint schedule room at the rate of Rs.500/- per mensum from the date of the suit. As the rate of rent is Rs.50/- per mensum, the trial court restricted the damages for use and -4- R.S.A.No.894/2009 occupation at the rate of Rs.50/- per mensum. The trial court passed a decree directing the defendants to surrender vacant possession of the plaint schedule room to the plaintiff and also ordered that the plaintiff is entitled to realize the charges for use and occupation of the plaint schedule room at the rate of Rs.50/- per mesum. 4. The defendants raised the very same contentions in the first appeal. The First Appellate Court also examined those contentions and agreed with the findings entered into by the trial court. The Appellate Court specifically held that the contention that the suit is is hit by the provisions of Section 47 C.P.C. and order XXI Rule 101 C.P.C. is unsustainable in law and the suit is maintainable. 5. After examining the facts, evidence and attendant circumstances, I am of the view that the courts below appreciated the evidence correctly and consequently passed decrees and judgments respectively. I find that the appellants have not made -5- R.S.A.No.894/2009 out any grounds to invoke this Court's jurisdiction under Section 100 C.P.C. No question of law much less any substantial questions of law arises for consideration in this appeal. In the result, the appeal fails and is dismissed in limine. The learned counsel for the appellants requested that a reasonable time for surrendering vacant possession of the plaint schedule room may be granted. In view of the request made, six months' time is granted to vacate the tenanted premises on the following conditions: 1) The appellants shall file an undertaking in the form of an affidavit before the execution court within one month from today unconditionally agreeing to vacate the plaint schedule room within the time allowed by this Court. 2) The appellants shall pay the entire arrears of rent within one month from today and shall also continue to pay the monthly rent regularly on or before the 5th day of every month, till they surrender vacant possession of the plaint schedule room. 3. They shall not cause any damage or shall not commit any waste or induct any strangers therein. 4. If the said conditions are not complied with, the -6- R.S.A.No.894/2009 plaintiff is at liberty to execute the decree, as if no time is granted by this Court. HARUN-UL-RASHID, Judge. kcv.