IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 RSA.No. 736 of 2011() --------------------- AS.99/2004 of SUB COURT, OTTAPPALAM OS.260/1999 of MUNSIFF-MAGISTRATE .COURT,PATTAMBI .................... APPELLANTS/RESPONDENTS 1, 2 & 5/DEFENDANTS 1, 2 &5: --------------------------------------------------------------------- 1. HAMZA HAJI, S/O.KOPPATH PARAMEL KUNHAHAMMED, RESIDING AT NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPALAM TALUK. 2. MOHAMMED NAZAR, S/O.HAMZA HAJI, RESIDING AT NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPALAM TALUK. 3. SUBAIDA, D/O.HAMZA HAJI, RESIDING AT NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPALAM TALUK. BY ADV. SRI.ALAN PAPALI SRI.NISHIL.P.S. SMT.O.V.BINDU RESPONDENT(S): APPELLANT & RESPONDENTS 3 & 4/PLAINTIFF & DEFENDANTS 3 & 4 ------------------------------------------------------ 1. NAZER, S/O.LATE MELEMOOTHEDATH ABDUL KHADER, MUNNIYOOR VILLAGE AND VELIMUKKU DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT 679323. 2. MOHAMMED ALI, S/O.HAMZA HAJI, RESIDING AT NETHIRIMANGALAM AMSOM AND DESOM, IN OTTAPALAM TALUK - 679340. 3. AFSAL, S/O.HAMZA HAJI, RESIDING AT NETHIRIMANGALAM AMSOM AND DESOM, IN OTTAPALAM TALUK - 679340. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ........................................... R.S.A.NO.736 OF 2011 ............................................. Dated this the 28th day of July, 2011. JUDGMENT Defendants 1,2 and 5 in O.S.No.260/1999 on the file of Munsiff Court, Pattambi are the appellants. First respondent is the plaintiff. Other defendants are respondents 2 and 3. First respondent instituted a suit for mandatory and prohibitory injunction. Plaint A schedule property is a building bearing No.1161 of ward No.5 of Pattambi Panchayat which originally belonged to the appellants. Plaint B schedule property is the lien to of the said building. First respondent contended that plaint A schedule property with the plaint schedule B schedule lien to was granted on lease by the first appellant acting as the power of attorney holder of appellants 2 to 5 to Abdulkhader - father of the first respondent and he has been in possession of the plaint A schedule building with plaint B schedule lean to. Bakery business was being conducted in the building and baking was carried on in the lean to. Abdulkhader died on R.S.A.NO.736 OF 2011 : 2 : 18.1.1987 and his rights devolved on widow Surekha and children including the first respondent. First respondent is conducting the bakery business since then. With the intention of evicting first respondent by force and to let the building on higher rent, first appellant demanded first respondent to surrender the building. When first respondent refused to surrender, on 14.11.1999 the first appellant along with coolie workers started demolishing a portion of the lien to. When it was demolished to a length of 15 feet, first respondent reached there on getting information and obstructed the same. Therefore the attempt to demolish the building and lien to was stopped. Though there was a mediation and first appellant agreed to reconstruct the demolished portion of the lean to, he did not do so and in spite of notice sent on 22.11.1999, first appellant did not reconstruct the demolished portion. On these allegations, first respondent sought a decree for mandatory injunction, directing the appellants to restore the portion of the plaint B schedule lean to and permanent prohibitory injunction restraining them from trespassing R.S.A.NO.736 OF 2011 : 3 : into the plaint A and B schedule building and lean to. Appellants resisted the suit contending that plaint A schedule building alone was granted on lease on 10.7.1966 and a lease deed was executed in stamp paper and the one room on the western side of the ground floor alone was entrusted to Abdulkhader on a monthly rent of Rs.55/= for business purpose and suppressing the rent deed the suit is filed and except the plaint A schedule shop room, Abdulkhader was not in possession of the lien to and the lien to has been in the possession of the appellants. First respondent had agreed to surrender possession of the shop room, but he did not keep his words. On 22.11.1999 first appellant had sent a notice demanding surrender of possession of the shop room and first respondent sent a reply on 28.11.1999 and thereafter he filed the suit when the rent deed is in the name of the father of the first respondent, the suit filed without impleading all the legal heirs or Abdulkhader is not maintainable. It was contended that the lien to was not demolished by the appellants, but a portion had fallen because of the decay and deterioration R.S.A.NO.736 OF 2011 : 4 : due to the old age. First respondent is not entitled to the decree sought for. It was also contended that for the bonafide need of the first appellant, RCP.No.8/2000 is filed for evicting the tenants and first respondent is not entitled to the relief sought for. 2. The learned Munsiff on the evidence of PWs 1 and 2 and Exts.A1 and C1 and C2 dismissed the suit holding that first respondent did not establish that plaint B schedule property forms part of the lease and he is not entitled to the mandatory injunction sought for. First respondent challenged it before Sub Court, Ottappalam in O.S.No.99/2004. The learned Sub Judge accepted as additional evidence copy of the deposition of the first appellant in the Rent Control Proceedings and four rent receipts issued by the first appellant, produced by the respondent under clause 2(b) of Rule 27 of Order XLI of Code of Civil Procedure and on re appreciation of the evidence found that plaint B schedule lien to was part of the lease and therefore held that the first respondent is entitled to get a mandatory prohibitory injunction to restore the demolished portion to its original R.S.A.NO.736 OF 2011 : 5 : stage. The appeal was allowed and a decree was passed directing the appellants to restore the portion of the lien to to its original position and permitted first respondent to restore it to the original position on the failure of the appellants to comply with the directions within two months and also restrained appellants from forcibly evicting first respondent or interfering with his peaceful possession. It is challenged in the appeal. 3. Learned counsel appearing for the appellants was heard. 4. The arguments of the learned counsel is that the learned Sub Judge was not justified in accepting Ext.A2 - copy of the deposition and Ext.A3 series of rent receipts, exercising the powers under sub rule 2(b) of Rule 27 of Order XLI of Code of Civil Procedure.. The argument is that there is no specific finding that the additional documents are necessary to pronounce a better judgment and when it was found that first respondent could have produced those documents before the trial court and there is no valid reason for their non production, in the absence of a finding that R.S.A.NO.736 OF 2011 : 6 : they are necessary to pronounce a better judgment, first appellate court was not empowered to receive them and in any case based on those documents a decree should not have been granted. The learned counsel also argued that finding of the learned Sub Judge that appellants will not be prejudiced by receipt of the additional evidence is also not correct and as stated by the learned Sub Judge first appellant did not admit Ext.A3 series of rent receipts. Making available copy of Ext.A2 deposition in the RCP and copies of Ext.A3 receipts learned counsel submitted that only one rent receipt issued in 1979 alone was specifically admitted by the first appellant when he was examined in the Rent Control Proceedings and therefore first appellate court was not justified in relying on Ext.A3 receipts. Learned counsel also argued that in any case when there is no finding that it was the appellants who demolished portion of the lien to, a decree for mandatory injunction should not have been granted. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The suit is R.S.A.NO.736 OF 2011 : 7 : filed by the tenant, admittedly occupying the plaint A schedule building. It is also admitted that rent control proceedings were initiated for evicting the first respondent by the appellants before the Rent Control Court and it is not disputed that RCP.No.8/2000 was pending when the evidence was recorded in the suit. The dispute in the suit is only with regard to the plaint B schedule lien to. When first respondent would contend that the lien to forms part of lease where under Abdulkhader - the father of first respondent obtained the plaint A schedule building on lease, the appellants would contend that it does not form part of the lease. The crucial question was whether the lien to was part of the lease. 6. Abdulkhader - the tenant admittedly died on 18.1.1987 and hence was not available for examination. The first appellant who admittedly granted the lease in favour of Abdulkhader, was not examined. At the same time, in R.C.P.No.8/2000 filed by the appellants to evict the first respondent from the tenanted building, first appellant was examined as PW1. The said deposition was not produced R.S.A.NO.736 OF 2011 : 8 : before the trial court. It was produced before the first appellate court with a petition under Rule 27 of Order 41 of CPC. As is clear from Ext.A2 - deposition of the first appellant in the rent control proceedings, question whether the lien to was also part of the lease was disputed in the R.C.P. PW1 was specifically cross examined with regard to this dispute. He was asked whether the lien to did not form part of the lease hold property. The evidence of the first appellant as PW1 in the rent control proceedings, as is clear from Ext.A2, establishes that the lien to was also part of the leasehold property, though first appellant as PW1 tried to explain their ase by contending that though the lien to was subject matter of the lease earlier, it was surrendered 20 years back and thereafter lien to was not in the possession of Abdulkader - the tenant. But when PW1 was further cross examined as to when the alleged surrender of the lean to was made, he was not in a position to explain. PW1 could not disclose whether the surrender was made by Abdulkhader or subsequently by the first respondent or his other legal heirs. In the light of evidence, R.S.A.NO.736 OF 2011 : 9 : the case of surrender can never by accepted. When it is the specific case of the first respondent that plaint B schedule lien to forms part of the leasehold property, his father and subsequently the respondent has been in possession of the lean to, if the lien to though formed part of the lease but was surrendered later and therefore does not form part of the lease after the surrender, appellants should have pleaded in the written statement that though the lien to originally formed part of the original lease there was a surrender and first respondent being the legal heir of the deceased tenant is not a tenant of the lean to. But that is not the case pleaded. Instead the specific plea of the appellants was that there was no lease of the lien to. Written statement shows that appellants have a case that the lease was granted on execution of an agreement in a stamp paper. Still no lease agreement was produced. If it was produced, it would have disclosed whether plaint B schedule lean to formed part of the lease. Its non production by the appellants is also fatal. When the document, if produced would have thrown light on the R.S.A.NO.736 OF 2011 : 10 : controversy whether lean to formed part of the lease, first appellant who alone could have been in custody of the document withheld it from courts, an adverse inference necessarily is to be drawn against the appellants. Ext.A2 deposition of first appellant shows that even in the Rent Control Petition it was specifically contended that the respondent Abdulkhader was not a tenant of the lien to. There was no case that there was a lease and a subsequent surrender. In the light of the evidence, it is not necessary to look into Ext.A3 series of rent receipts. Ext.A2 deposition shows that rent receipts were shown to the first appellant and he admitted that rent receipts were issued showing payment of rent for the lien to. Though in some rent receipts existence of lien to, as part of the leasehold property, was not mentioned, PW1 when specifically asked whether non mentioning of lien to was an omission, admitted in unambiguous term that it was an omission. Therefore on the evidence first appellate court was justified in holding that lien to forms part of the lease. 7. Argument of the learned counsel is as against R.S.A.NO.736 OF 2011 : 11 : receipt of additional evidence. The argument is that if the additional evidences admitted by the first appellate court are not looked into, there is no reason to interfere with the decree of the trial court. When the first appellant did not come to the witness box and was not prepared to face cross examination, the trial court should have taken an adverse inference for his non examination. Moreover, when the first appellant was not examined before the trial court and he was examined in the parallel proceedings in R.C.P.No.8/2000 where also the question whether lean to was part of the lease was agitated, his evidence tendered in R.C.P.No.8/2000 is definitely necessary to pronounce a better judgment. In such circumstances, even though first appellate court did not specifically stated that the additional documents are necessary to pronounce a better judgment, when the learned Sub Judge held that they are necessarily to be received and were received as provided under sub rule 2 (b) of Rule 47 of Order 21, it implies that learned Sub Judge received them as they are necessary to pronounce a better judgment. R.S.A.NO.736 OF 2011 : 12 : 8. In the light of the evidence on record, I find that the factual finding arrived at by the first appellate court that plaint B schedule lean to forms part of the lease is perfectly in accordance with law. The evidence also establishes that part of the lean to was demolished by the appellants evidently with an intention to evict the tenant from the tenanted premises, the decree for mandatory and prohibitory injunction granted is perfectly in order. In such circumstances the appeal is dismissed. M.SASIDHARAN NAMBIAR, Judge. cl