IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 RSA.No. 1158 of 2009() ---------------------- AS.207/2006 of I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM OS.486/2005 of I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM .................... APPELLANTS/APPELANTS /DEFENDANTS ----------------------------------------------------------------- 1. THE VICA,MARTHOMA ST.THOMAS CHURCH, PATTOOR,PATHIRIKARI MURI,VANCHIYOOR, THIRUVANANTHAPURAM. 2. THE VICAR,JERUSALEM MARTHOMA CHURCH, NANTHENCODE,THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SRI.G.SUDHEER(kARAKONAM) RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------------------------- 1. MAMMEN THOMAS,S/O.LATE P.M.THOMAS, HILL CRESTGROVE,TC 11/1297,NANTHENCODE, THIRUVANANTHAPURAM. 2. KURIEN EAPEN THOMAS,S/O.LATE P.M.THOMAS, ELLA HOUSE,NANTHENCODE,THIRUVANANTHAPURAM. 3. SARAMMA ABRAHAM,W/O.ABRAHAM KOSHY, NELLUMOOTTIL GRACE HOUSE,SREEMULAM MARKET, ADOOR. 4. THOMAS THOMAS,S/O.LATE P.M.THOMAS, PB NO.1005,UTATA,TRANSKEE,PIN:5100,SOUTH AFRICA AND FROM ELI HOUSE,NANTHENCODE,THIRUVANANTHAPURAM. ADV. SHRI P.GOPALAKRISHNAN NAIR (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1158 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of January, 2010 J U D G M E N T ---------------------- Respondents appear through Advocate P.Gopalakrishnan Nair. 2. Second Appeal arises from judgment and decree of learned Additional District Judge, Thiruvananthapuram in A.S. No.207 of 2006 confirming decree for declaration of title and recovery of possession of the suit property in favour of respondents passed by learned Additional Munsiff, Thiruvananthapuram in O.S. No.486 of 2005. 3. Respondent Nos.1 to 4 are the grand children and legal heirs of the late Dr.Kurian Eapen to whom the suit property originally belonged. He started a Kindergarten in the suit property and while so executed Ext.A1, Will dated 27.04.1938 and a Codicil dated 29.04.1942 to the Will. As per the Will properties mentioned therein including the suit property (item No.5 therein) were disposed of. There was a direction that the kindergarten in the suit property will be continued as long as Mrs. and Mr.S.K. George conducted that School and in case they gave up management of R.S.A. No.1158 of 2009 -: 2 :- the School, wife of the testator and executors were given discretion to use the suit property for educational purposes or to alienate the same. One Dakshayani Amma was functioning as Manager of the School. She joined the Government service. Respondents claimed that they as legatees under the Will executed by the late Dr.Kurian Eapen took possession of the suit property and were conducting the School. As they were not able to manage the same they closed it. Later as per Ext.A5, registered lease deed of the year 1948 the suit property was given on lease to appellant No.1 for running the School for a period of 12 years reserving and annual rent. Rent was later enhanced to Rs.120/- per annum. Respondents contended that appellant No.1 paid the rent till 31.12.1964. Respondents issued notice to appellant No.1 seeking surrender of the property as period of lease expired by efflux of time. Appellant No.1 in reply, denied title of the respondents. Hence respondents sued for declaration of their title under the Will and Codicil and recovery of possession of property from appellant No.1. Appellant No.1 contended that all the legal heirs of the late Dr.Kurian Eapen are necessary parties to the suit and that respondents are not beneficiaries under the Will. After Dakshayani R.S.A. No.1158 of 2009 -: 3 :- Amma left the School as its Manager, the School was entrusted to appellant No.1. Testator had dedicated the property for running the School and Ext.A5, lease deed was executed only for getting recognition for the School from the State Government. Appellant No.1 is running the School from 1946 onwards with Government aid. It is also contended that the period of lease as per per Ext.A5 expired in 1136 M.E. and hence suit filed in the year 2005 is barred by limitation. Trial court found that respondents have title over the suit property and that they are entitled to recover possession of the same since period of lease referred to in Ext.A5 has already expired. Other contentions raised by appellant No.1 were negatived. Accordingly decree was granted in favour of respondents. First appellate court has confirmed the findings and decree. Hence the Second Appeal urging by way of substantial question of law whether suit is barred by limitation in view of Article 67 of the Indian Limitation Act and whether suit is bad for publication under Order I Rule 8 of the Code of Civil Procedure (for short, “the Code”). Right of respondents to get possession of the property as per Ext.A5 is also raised as a substantial question of law. Learned counsel for appellants harping upon the above questions R.S.A. No.1158 of 2009 -: 4 :- contended that findings entered by the courts below are unsustainable. Learned counsel for respondents supported findings of courts below. 4. So far as title of respondents is concerned, it is proved by Exts.A1 and A2. 5. One contention advanced is that the testator had dedicated the property for running a School, pursuant to that dedication appellant No.1 has been running the School from 1946 onwards and hence the property is not recoverable so far as appellant No.1 is running the School in the suit property. Ext.A5, lease deed was executed in the year 1948 merely for getting recognition for the School from the State Government, it is contended. So far as that contention is concerned there is no evidence of dedication as contended by appellant No.1 in his favour and at any rate Ext.A5, registered lease deed of 1948 is not disputed by the appellants. Hence rights and liabilities have to be decided on the strength of Ext.A5. 6. Argument advanced by the learned counsel for appellants is that even as per Ext.A5 respondents have no right to recover possession of the suit property from appellant No.1 so far as R.S.A. No.1158 of 2009 -: 5 :- he continued to use the suit property for educational purposes. That argument arises from a recital in Ext.A5 that in case appellant No.1 stops running the School in the suit property, the property will revert to the persons entitled to under the Will. But that recital is subject to the clause in Ext.A5 that the lease is for a period of 12 years and that the lease is for the purpose of running educational institution in the suit property. In other words, recital relied on by learned counsel for appellants is only a clause which enabled the respondents to seek recovery of possession of the suit property even before expiry of the period of lease referred to in Ext.A5 in case appellant No.1 failed to carry out the object of the lease. 7. Another argument advanced by learned counsel is that at any rate, period of 12 years referred to in Ext.A5 expired in the year 1960, the suit ought to have been filed within 12 years under Article 67 of the Limitation Act and hence the suit filed in the year 2005 is barred by limitation. 8. No doubt, period of lease provided under Ext.A5 expired in the year 1960, but that does not mean that thereafter appellant No.1 was in unlawful possession of the property. It is the case of respondents and it is not disputed also that even after 1960 R.S.A. No.1158 of 2009 -: 6 :- appellant No.1 has been paying rent as agreed between the parties till 31.12.1964. Of course respondents have a case that rent thereafter was not paid. Therefore it is possible to say with reference to Section 116 of the Transfer of Property Act that appellant No.1 continued to be a tenant holding over subject to the terms and conditions of the earlier lease. Even otherwise mere fact that no rent was paid after 1964 does not mean that appellant No.1 is in possession of the property with hostile animus to the respondents or in any other capacity than as a tenant. When the tenant holding over continued to be in possession even after expiry of the period of lease with the assent of the landlord and the tenant did not deny title of the landlord he becomes a tenant holding over under Section 116 of the Transfer of Property Act. Such tenancy can be determined by notice. Hence the contention that the suit is barred under Article 67 of the Limitation Act cannot stand. It is also to be noted that suit is for recovery of possession based on title and court fee has been paid under Section 25(a) of the Kerala Court Fees and Suits Valuation Act. Denial of title of respondents came from appellant No.1 only as per Ext.A7, reply notice dated 28.10.2002. Suit is filed in the year 2005. R.S.A. No.1158 of 2009 -: 7 :- 9. It is further contended by learned counsel for appellants that suit is bad for want of publication under Order I Rule 8 of the Code. Appellant No.1 is the lessee under Ext.A5. That lease has been terminated by notice referred to in the suit and recovery of possession is sought. Hence the contention that the suit has to fail for want of publication under Order I Rule 8 of the Code has to fail. On hearing counsel for appellants and going through the judgments under challenge I do not find any substantial question of law involved in the Second Appeal requiring its admission. 10. At this stage learned counsel for appellants requested six months' time to vacate the suit property since appellants are running an educational institution therein. Learned counsel for respondents is agreeable to granting six months' time provided appellants undertook to vacate the suit property on the expiry of the said period. Resultantly, the Second Appeal is dismissed in limine but appellants are granted six (6) months' time from this day to vacate the suit property subject to the following terms and conditions. (i) Appellants shall deposit in the trial R.S.A. No.1158 of 2009 -: 8 :- court the entire arrears of rent due as per the decree of the trial court till 31.01.2010 on or before 15.02.2010. (ii) Future arrears of rent as per the decree of the trial court payable from 01.02.2010 onwards shall be deposited by the appellants in the trial court on or before 5th of every succeeding month. (iii) Appellants shall vacate the suit property as directed in the decree of the trial court on the expiry of the period of six months referred to above without putting forth any claim or objection on any count. (iv) Appellants shall file an affidavit in the trial court within a period of three weeks from this day undertaking to comply with the above terms and conditions. THOMAS P.JOSEPH, JUDGE. vsv