IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 RSA.No. 597 of 2008 --------------------------------- AS.12/2006 of III ADDL. SUB COURT, KOZHIKODE OS.476/2002 of ADDL.M.C.-I, KOZHIKODE .................... APPELLANT/APPELLANT/PLAINTIFF: RIVERDALE EDUCATION SOCIETY KUNDUNAL, NAGARAM AMSOM DESOM, KOZHIKODE TALUK, REPRESENTED BY ITS SECRETARY, C.MOOSAKOYA, AGED 52 YEARS, S/O.KUNHAMMED, NADUVATTOM AMSOM DESOM, KOZHIAKODE TALUK. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS/RESPONDENTS/RESPONDENTS: 1. KAVUTHODIYAKATH ASSANKOYA, AGED 65 YEARS, S/O.MUHAMMED KOYA HAJI, RESIDING AT PANNIYANKRA AMSOM DESOM, KOZHIKODE TALUK. 2. KAVUTHODIYAKATH AYISSABI, AGED 60, D/O.MUHAMMED KOYA HAJI, RESIDING AT PANNIYANKRA AMSOM DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.597 of 2008 --------------------------- JUDGMENT This appeal is by the plaintiff in O.S.No. 476/02 on the file of the Munsiff's Court, Kozhikode and is one assailing the concurrent verdicts of the courts below dismissing their suit for declaration and injunction. 2. The appellant Society instituted the suit aforesaid for declaration and injunction, inter alia, on the allegations that the scheduled property belongs to the Tharavad of the defendants, who leased out the same under Exhibit B1 in favour of K.Azeez and Mammed Koya on 21.8.1989 for conducting River Dale English Medium School; that the School was established by the plaintiff Society in the year 1988 and was shifted to the plaint schedule building during the very same month; that the agreement of lease was signed by the defendants representing the landlords and by one Azeez, who was the founder President of the plaintiff Society RSA 597/08 2 and by one Mammed Koya, the then Secretary of the Society; that the building was never under the occupation of Azeez or Mammed Koya in their personal capacity; that the rent payable was Rs.700/- per month and an advance of Rs.15,000/- was also paid; that the plaintiff had carried out necessary repairs spending an amount of Rs.19,413/-, as the building required repair during the year 1998; that from June 1998 onwards it was agreed that the rent would be enhanced to Rs.1,300/-; that this was reduced in writing on the reverse side of the rent receipt dated 5.8.1998; that the plaintiff society is conducting and managing the River Dale English Medium School and is in possession of the plaint schedule property as a tenant; that in the year 2000, some teachers, including Raziya, who is the widow of the aforesaid Azeez, began to indulge in misconduct like dereliction of duty; that the Headmistress was found to have misappropriated the amount which was RSA 597/08 3 collected by her from the students and parents; that when action was taken against them, they filed I.A.No.211/01 to restrain the Society from managing the school; that subsequently, Raziya and Mammed Koya filed O.S.No.272/01claiming that the plaintiff Society has no possession over the plaint schedule property; that the suit was dismissed on 22.8.2001; that the plaintiff Society filed o.S.No.265/01 to restrain the erring teachers from interfering with the functioning of the Society and School; that the defendants are active supporters of the erring teachers and Mammed in all these litigations and that their attempt is to oust the plaintiff Society and School from the plaint schedule property. Hence the suit. 3. The suit was resisted by the defendants filing written statement contending that the plaintiff has no locus standi to institute the suit or verify the pleadings, as he has no relation with the plaintiff Society; that the plaintiff Society RSA 597/08 4 is not a tenant under them; that the tenants are P.Mammed Koya and K.Abdul Azeez and representing Abdul Azeez, his wife Raziya is conducting the School in the plaint schedule property; that the rent of the scheduled premises at present is Rs.2,500/-; that the rent is in arrears from 1.11.2001 onwards; that the suit is instituted to avoid payment of rents and to get themselves also involved in the dispute with respect to the functioning of the School; that they understand from the plaint allegations that the scheduled building is now sub let to the plaintiff Society and they will be taking appropriate legal action in the matter; that in I.A.No.6077/01 filed in O.S.No. 776/01, an injunction order was passed restraining the plaintiff from interfering with the functioning of the plaintiff Society; that the plaintiff is not the Secretary of the Society; that however, they have not let out the plaint schedule building to the plaintiff society and that the suit is, hence, RSA 597/08 5 not maintainable and has to be dismissed. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted or oral evidence of PW1 and DW1 and documentary evidence Exhibits A1 to A29 and B1 to B4, dismissed the suit with costs. The aggrieved plaintiff Society filed A.S.No.12/06 before the Sub Court, Kozhikode and the said appeal was dismissed confirming the judgment and decree of the trial court. Hence this Regular Second Appeal by the aggrieved plaintiff Society. 5. Exhibit B1, admittedly, is the rental deed dated 21.8.1989, where under the defendants have demised the scheduled premises on rental arrangement in favour of K.Azeez and P.Mammed Koya. The said Azeez or Mammed Koya is not the plaintiff in the suit. River Dale Education Society is the appellant. They filed the suit claiming that they are the tenants and that the defendants are RSA 597/08 6 attempting to evict them forcibly. By no stretch of interpretation can the terms in Exhibit B1 be construed as a tenancy, which will enure to the benefit of the plaintiff Society. It is rental deed in favour of K.Azeez and P.Mammed Koya in their personal capacity only. The trial court observed that Exhibits A15 and A20 produced by the plaintiff would show that the landlord was issuing receipts in the name of P.Mammed Koya and Raziya, who is the wife of another tenant Azeez and that that fact is admitted also by PW1. If at all the appellant Society is in possession and enjoyment of the tenanted premises, it can only be under Mammed Koya and the said Azeez and not in any independent right. The defendants have never recognized also the plaintiff Society as a tenant. As rightly observed by the trial court, there is nothing in evidence to show that there was any threat from the landlords that the plaintiff will be forcibly evicted. On the other hand, Exhibit B2 shows that RSA 597/08 7 they have issued a statutory notice and that suggests that the defendants are only attempting to resort to lawful means to have recovery of possession of scheduled premises. 6. It is also submitted by the learned counsel for the appellant that RCP is filed for eviction on the ground of sub-letting of the scheduled premises to the appellants by K.Azeez and P.Mammed Koya, who are the tenants under Exhibit B1 rental deed. It is also submitted that Azeez is no more and hence in the place of Azeez, it is his wife Raziya, who is impleaded as his legal representative. 7. When the plaintiff is not having any tenancy right over the scheduled premises, they have no locus standi to institute a suit for declaration and injunction on the lines prayed for and the courts below have rightly come to the conclusion that the plaintiff Society is not the tenant under the defendants and that they are not entitled to the declaration and injunction as prayed for. RSA 597/08 8 There is absolutely no merits in the Regular Second Appeal and there is no question of law and much less any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. This Regular Second appeal, in the circumstances, deserves only to be dismissed. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 25th August, 2008 (K.P.Balachandran, Judge) tkv