IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 FAO.No. 280 of 2007() --------------------- AS.24/2007 of ADDL.DISTRICT COURT/SPL. COURT FORNDPS ACT CASES, THODUPUZHA OS.163/2005 of MUNSIFF COURT,THODUPUZHA .................... APPELLANT-RESPONDENT-PLAINTIFF ---------------------------------------------- KAMALAKSHI, D/O.KESAVAN, VANIYEDATHU (VELLAMACKAL) HOUSE, MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT/APPELLANT/DEFENDANT --------------------------------- MAKKAR, S/O.AHAMMED, NEDUNGATTIL HOUSE, MUTTOM KARA & VILLAGE, MUTTOM P.O., THODUPUZHA TALUK. BY ADV. SRI.JOMY GEORGE THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- F.A.O.No.280 of 2007 ------------------------------------------------- Dated, this the 27th day of March, 2008 JUDGMENT The plaintiff in O.S.No.163/2005 on the file of Munsiff's Court, Thodupuzha is the appellant. The appellant filed a suit for eviction of the respondent alleging that she is the landlord and the respondent is the tenant. In the plaint it was averred that the property originally belonged to one Karthiayani who bequeathed the same to the appellant under a registered will. It was also averred that the plaint building was let out to the respondent on a monthly rent of Rs.300/- on 11.1.2002. It is further averred that the appellant issued a notice as contemplated under Section 106 of the Transfer of Properties Act terminating the tenancy to which the respondent had not even sent a reply. Hence she wanted eviction of the tenant with arrears of rent. 2. Respondent contended that building was taken on rent on 17.8.1994 and respondent was regularly paying rent. It was contended that rent arrangement was renewed orally by the plaintiff and defendant and suit was instituted with the mala fide intention of seizing the property of late Karthiayani. FAO No.280/2007 2 3. The trial court found that there is landlord-tenant relationship and ordered eviction of the respondent. Aggrieved by the decree and judgment passed by the trial court the defendant filed A.S.No.24/2007 before the Additional District Court, Thodupuzha. Lower appellate court set aside the judgment and decree passed by the trial court and remanded the case for fresh disposal. Challenging that order of remand the appellant/plaintiff has filed this appeal. 4. The following substantial questions of law were framed for consideration in this appeal: i. Is not the lower appellate court in error in setting aside the decree of the trial court granting a decree of recovery of possession granted in favour of the plaintiff and remanding the matter to the trial court for considering the title of the plaintiff to the plaint schedule property, in the absence of even a formal denial of the averments of the plaintiff in her plaint in respect of her title to the plaint schedule property. ii. Is not the lower appellate court in serious error in over looking the fact that the defendant in his pleadings has admitted the fact that he was paying rent to the plaintiff and her son in respect of the plaint schedule property. In the light of this admission was it not obligatory on the part of the lower appellate court to have held that the defendant is estopped in view FAO No.280/2007 3 of Section 116 of the Indian Evidence Act even to deny the title of the plaintiff. 5. A reading of the judgment of the lower appellate court shows that it proceeded as if it is a suit for recovery of property on the strength of title. The subject matter of the suit is only a building. The only point arising for consideration in this appeal is whether there is material to establish the landlord-tenant relationship and whether there is proper termination of tenancy. Whether the appellant got absolute title over the property under Ext.A1 will is immaterial. It is also not necessary to implead the other heirs of deceased Karthiayani. If the appellant is able to establish that she is the landlord of the respondent, she had every right to evict the tenant. So the sole question arising for consideration is whether there is landlord-tenant relationship between the plaintiff and defendant. That aspect was not considered by the lower appellate court. Since the lower appellate court treated the suit as one based on title, I have no other option but to set aside the order of remand passed by the lower appellate court and remand A.S.No.24/2007 back for fresh disposal in accordance with law. In the result, appeal is allowed. The order of remand passed by the lower appellate court in A.S.No.24/2007 is hereby set aside and the appeal FAO No.280/2007 4 is remanded to the lower appellate court for fresh disposal. Lower appellate court is directed to take appeal back to file and dispose of the same afresh in accordance with law, as expeditiously as possible, at any rate, within a period of six months from the date of first appearance of parties. Parties shall appear before the lower appellate court on 22.5.2008. I.A.No.3483/2007 in F.A.O.No.280/2007 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks