IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 RSA.No. 753 of 2011() --------------------- AS.35/2004 of SUB COURT, PAYYANNUR OS.90/2003 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTS/ APPELLANTS/ PLAINTIFFS ------------------------------------------- 1. C.V.DAYANANDAN ,S/O.KUNHAMBU AGED 50 YEARS, CHOVATTA VALAPPIL HOUSE, GOLD SMITH, KARUVACHERRY, PAYYANNUR AMSOM 7 DESOM, P.O.PAYYANNUR 2. C.V.SAHTYACHANDRAN, S/O.KUNHAMBU AGED 38 YEARS, CHOVATTA VALAPPIL HOUSE, GOLD SMITH, KARUVACHERRY, PAYYANNUR AMSOM 7 DESOM P.O.PAYYANNUR BY ADV. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.JOJO GEORGE SRI.V.R.REKESH RESPONDENTS/RESPONDENTS/DEFENDANTS : ----------------------------------------------------- 1. C.V.SIVADASAN ,S/O.KUNHAMBU AGED 47 YEARS, COVATTA VALAPPIL HOUSE, GOLD SMITH,KARUVACHERRY, PAYYANNUR AMSOM DESOM,PAYYANNUR P.O.-670307 2. C.V.JAYACHANDRAN, S/O.KUNHAMBU AGED 30 YEARS, COVATTA VALAPPIL HOUSE, GOLD SMITH,KARUVACHERY, PAYYANUR AMSOM DESOM, PAYYANNUR-PIN-670307 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.753 OF 2011 --------------------------------------------- Dated 13th July, 2011 JUDGMENT Plaintiffs in O.S.90/2003 on the file of Munsiff court, Payyannur are the appellants. Respondents are the defendants. Appellants and respondents are the children of C.V. Kunhambu. C.V.Kunhambu died in 1990. Appellants instituted the suit for permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property contending that plaint schedule property, which is a building admittedly belonging to Thiruvangadan Lakshmi Amma bearing No. PMC.XXI/2188 where Subhash Jewellery is being conducted is in their possession as building tenants. Appellants RSA 753/11 2 would contend that they are in possession of the property under Ext.A1 rent deed executed in favour of Lakshmi Amma on 2/4/1993 and respondents have no manner of right over the said business and therefore, they are to be restrained by a permanent prohibitory injunction. Respondents resisted the suit contending that the building was originally obtained by their father in 1951 on rent and he was conducting jwellery shop and later he executed kychit in favour of Lakshmi Amma on 5/4/1988. On the death of Kunhambu, the tenancy right devolved on all the children including the respondents and their sisters and therefore, appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A9, B1 to B5 dismissed the suit holding that plaint schedule building RSA 753/11 3 was originally obtained by C.V.Kunhambu, who has been in possession of the building till his death in 1990 and as there is no case that his tenancy right was surrendered, appellants on the strength of Ext.A1 cannot claim exclusive right and therefore, they are not entitled to the decree sought for. Appellants challenged judgment before Sub Court, in A.S.35/04. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. Argument of the learned counsel is that though courts below held that Ext.A1 was not proved, when Ext.A1 shows that respondents were attestors to the kychit executed by the appellants subsequent to the RSA 753/11 4 death of their father and therefore, respondents are not entitled to challenge the validity of Ext.A1 or the exclusive right of the appellants to the tenanted building. It is therefore, argued that courts below should have granted the decree sought for. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Admittedly, C.V.Kunhambu, the father was the building tenant. The tenancy admittedly continued till his death. He was a tenant as defined under Kerala Building (Lease and Rent Control) Act. Under the Act, on the death of the tenant, his rights will devolve upon all his legal heirs. Respondents are thus co-tenants along with the appellants, being the children of Kunhambu. Though Ext.A1 was executed, appellants cannot obtain a fresh lease unless there was a RSA 753/11 5 surrender of the original lease by Kunhambu or subsequent to his death by all his legal heirs in her favour of the landlady. Though learned counsel argued that evidence of PW1 establish that there was an oral surrender, if there was such an oral surrender, it would have definitely mentioned in Ext.A1. Ext.A1 does not disclose any oral surrender. Plaint also does not show an oral surrender. On the other hand, evidence show that tenancy continued even after the death of Kunhambu. Even according to the appellants, tenancy continued till Ext.A1 was executed. If that be the case, by executing a kychit in favour of landlady by some of the legal heirs of the deceased tenant, they cannot set up exclusive right over the plaint schedule building. When there was no surrender, the original tenancy will continue. Hence respondents are co-tenants. Being the RSA 753/11 6 co-tenants, respondents are also entitled to the equal rights. As no substantial question of law is involved, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.