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. 270 of 2007() --------------------- AS.133/2006 of ADDL.DISTRICT COURT/SPL. COURT FOR NDPS ACT CASES, THODUPUZHA OS.279/2005 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.SUJESH MENON V.B. RESPONDENT-APPELLANT- DEFENDANT ---------------------- JOSEPH CYRIAC,S/O. KURIAN, CHAKALACKAL HOUSE, NELOOR P.O. KADANADU VILLAGE, MEENACHIL 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.270 of 2007 ------------------------------------------------- Dated, this the 27th day of March, 2008 JUDGMENT The appellant filed a suit for eviction of the respondents from the building with arrears of rent from the plaint schedule building. The averments in the plaint are as follows: The land and building originally belonged to one Karthiayani who let out the building to the appellant for a monthly of Rs.1,050/-. The appellant became the owner of the property as per will No.71/03 of S.R.O., Karikode, dated 10.7.2003. It is also averred that the appellant is the landlady and the respondent was paying rent to the appellant. Appellant terminated the tenancy by issuing a notice as contemplated under Section 106 of the Transfer of Properties Act. So she claimed eviction of the building with arrears of rent. 2. The respondent filed a written statement contending that the suit is not maintainable. It is admitted that respondent is a tenant of building bearing door No.417/VIII of Muttom Panchayat. It is also admitted that building was taken on rent from Karthiayani on executing a rent agreement dated 28.5.2002. It is also admitted that the monthly rent payable was Rs.1,050/-. It is contended that Karthiayani died issueless and FAO No.270/2007 2 she used to collect daily rent at the rate of Rs.35/- every day for which no receipts were issued. It is also contended that building in question is situated in the property comprised in Sy.No.327/2 AB of Muttom Village. Respondent pleaded ignorance regarding execution of will. It is further contended that he paid Rs.10,000/- as security to Karthiayani at the time of execution of rent agreement. It is contended that respondent was running a hotel and tea shop in the plaint schedule building and when the original landlady Karthiayani was bed ridden she entrusted the appellant and her son to receive the rent on behalf of the original landlady. It is also contended that after the death of original landlady the respondent was paying rent to the appellant till 30.3.2005. It is further contended that during January, 2004 the appellant demanded an increase in the rate of rent, i.e., from Rs.35/- to Rs.50/- per day and the respondent had agreed to pay the rent at the enhanced rate, provided a rent deed was executed. But the appellant was not willing to execute rent deed. Regarding the notice under Section 106 of the Transfer of Properties Act it was contended that it has no effect. The averment that there was arrears of water charges was denied. Respondent prayed for dismissal of the suit. 3. Trial court considered the issue and found that the respondent is a tenant of the appellant and he paid rent till 30.3.2005. Suit was decreed FAO No.270/2007 3 in part. The appellant was allowed to recover the plaint schedule building with an amount of Rs.1,136/- as water charges and Rs.1,050/- per month as damages for use and occupation. Challenging that decree and judgment the respondent filed an appeal as A.S.No.133/2006 before the Additional District Court, Thodupuzha. Lower appellate court took a view that the plaintiff who claimed title over the building under a will has not proved the will in accordance with the provisions contained in the Evidence Act. It also found that there is difference of survey number in the rent deed as well as in the plaint. Lower appellate court set aside the judgment and decree passed by the trial court and remanded the matter for fresh disposal. Challenging that order of remand the 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 FAO No.270/2007 4 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 of Section 116 of the Indian Evidence Act even to deny the title of the plaintiff. 5. Learned counsel for the appellant/plaintiff has argued that the lower appellate court did not understand the scope of the suit. It is argued that the lower appellate court proceeded as if it is a suit for recovery on the strength of title and that is the reason why the lower appellate court directed the appellant to implead the other legal representatives of deceased original landlord. It is further argued that it is absolutely unnecessary and hence the order of remand passed by the lower appellate court setting aside the decree and judgment passed by the trial court is to be set aside and the decree and judgment passed by the trial court are to be restored. 6. Suit is based on landlord-tenant relationship. It is specifically averred that building was let out to the respondent by late Karthiayani and the appellant became the landlady after the death of original landlady. It is argued out that in paragraph four of the written statement the respondent had admitted that even during the life time of Karthiayani the appellant was FAO No.270/2007 5 collecting rent and after the death of Karthiayani also the respondent was paying rent to the appellant till 30.3.2005. It is also argued that the appellant made a demand to increase the rate of rent and respondent was willing to effect enhancement of rate of rent provided a fresh rent deed is executed. The question whether the appellant got title over the building is immaterial for a decision in the suit. The only question arising for consideration in the nature of the suit is whether there is material to establish landlord-tenant relationship. If it is proved that the appellant is a landlady and respondent is a tenant in respect of the plaint schedule building, the appellant is entitled to get a decree subject to other conditions.. It is also pointed out that this is an area in which the provisions of Building (Lease and Rent Control) Act are not made applicable and the appellant had issued a notice terminating the tenancy and there is no challenge regarding sufficiency of the notice. 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.133/2006 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.133/2006 is hereby set aside and appeal is remanded to the lower appellate court for fresh disposal. Lower appellate FAO No.270/2007 6 court shall consider and dispose of the appeal 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.3404/2007 in F.A.O.No.270/2007 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks