IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 RSA.No. 635 of 2003() --------------------- AS.23/1998 of PRINCIPAL SUB COURT,THALASSERY OS.24/1979 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- KODIYIL EACHAL NALAKATH USMAN BY MUKTHIAR HOLDER T.P.MAMMOOTTY, S/O. ABDULLA, AGED 51, RESIDING AT THAYOTH PUTHIYAPURAYIL, KEEZHALLOOR AMSOM, DESOM, THALASSERY TALUK. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.P.VISWAMBARAN SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. P.K.KADEESUMMA, D/O. KUTTIATHA, AGED 29, KOTTAYAM AMSOM, KINAVAKKAL DESOM, THALASSERY TALUK. 2. KODYIL EACHAL NALAKATH KHADEEJA, D/O. ABDULKHADER, AGED 34, VADAKKE PULIKKOOL, VADAKARA TALUK, NADAPURAM AMSOM, EAYANKODU DESOM. 3. PAZHAEKKOTTAL MAYAN, S/O. KUTTIATHA, 24 YEARS, BUSINESS, SAHIRA MANZIL, KOTTAYAM AMSOM, KINAVAKKAL DESOM. 4. BROTHER - DO - MUHAMMED, AGED 21, BUSINESS, RESIDING AT DO. DO. 5. -DO- UMMER S/O. KUTTIATHA, AGED 19, BUSINESS, RESIDING AT DO. DO. (*) 6. PAZHAYAKOTTAL BEEYACHUMMA, TAHIRA MANZIL, KOTTAYAM AMSOM, KINAVAKKAL DESOM, THALASSERY TALUK. (DIED. R3 TO R5 RECORDED AS L. HRS.) RSA No.635/2003 2 7. SON DO. ASHRAFF, AGED 22, BUSINESS RESIDING AT DO. DO. 8. SISTER DO. KUNHAMI, AGED 20 NO OCCUPATION, RESIDING - DO. DO. 9. BROTHER - DO - THAJUDDIN, AGED 19, DO. SUPPL.10. KEN, KADEEJA, W/O. DECEASED KUNHABDULLA HAJI AGED 50, RESIDING VADAKKE PULIKKOOL NADAPURAM AMSOM, EAYANKODE DESOM, VADAKARA TALUK. 11. CHILDRAN KEN.ISMAIL, S/O. KUNHABDULLA HAJI. 12. YOUNGER SISTER KEN SUHARA, D/O. KUNHABDULLA HAJI, AGED 21, DO. DO. 13. YOUNGER BROTHER KEN SADIQUE, AGED 19 DO. DO. (SUPPL.D12 TO 15 IMPLEADED AND AMENDED AS PER ORDER ON I.A.1514/98 & I.A.1515/98 DATED 17-11-1998) SUPPL.14. KODIYIL EACHAL NALAKATH AYISHA D/O. MAMMALI, AGED 30, RESIDING AT KAPPANTEVALAPPIL, KUTHUPARAMBA AMSOM, MURIYAD DESOM, THALASSERY TALUK. 15. DO. YAHIA ALI D/O. MAMMALI, BUSINESS, AGED 28, RESIDING DO. DO. 16. DO.REMLA D/O. MAMMALI, AGED 26, NO OCCUPATION, RESIDING DO. DO. (SUPPL.14 TO 16 ARE IMPLEADED AND AMENDED AS PER ORDER ON I.A.3758/2000 AND I.A.3759/2000 DT.13-11-2000 AS LRS. OF DECEASED R2). (*)RESPONDENTS 3 TO 5 AND R9 ARE RECORDED AS THE L.HRS. OF DECEASED R6, AS PER THE ORDER DATED 14.8.2009 VIDE MEMO CF.3519/2009 ADV. SRI.CIBI THOMAS FOR R1,3,4,5,7,9 & 14 TO 16 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON 06/01/2010 DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.635 of 2003 -------------------------------------- Dated this the 6th day of January, 2010. JUDGMENT The Regular Second Appeal arises from judgment and decree of learned Principal Sub Judge, Thalassery in A.S.No.23 of 1998 arising from judgment and decree of learned Munsiff, Kuthuparamba in O.S.No.24 of 1979. Suit is for declaration of leasehold right and recovery of possession of a shoproom. Trial court dismissed the suit. That is confirmed by the first appellate court. Hence the Second Appeal. During the pendency of the proceedings, the original plaintiff transferred her right in favour of plaintiff No.2. She died pending proceedings. But in the light of the assignment in favour of plaintiff No.2 her legal representatives were not impleaded. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. Deceased defendant No.1 is the brother and thavazhi karanavan of deceased plaintiff No.1 and defendant No.3. Originally deceased plaintiff No.1 wanted recovery of possession of the shoproom from deceased defendant No.1 and his children alleging that the shoproom was taken on lease by herself and defendant No.3 from the wife and children of Savan Haji. According to her as per Ext.A1, sreedhana deed executed by deceased defendant No.1 she got right over a shoproom situated near Kuthuparamba bus stand which was entrusted to the said Savan Haji as per a rent deed dated 1.3.1947. As per the directions in Ext.A1 if rent of the shoproom exceeded Rs.120/- per month, the excess RSA No.635/2003 2 amount was to be paid to defendant No.3. While so, to accommodate her children deceased plaintiff No.1 asked Savan Haji to vacate the said room. There was a mediation in the presence of deceased defendant No.1 and in that mediation the shoproom belonging to the wife and children of Savan Haji was entrusted to deceased plaintiff No.1 and defendant No.3 as per a kaichit dated 13.5.1966. The same day a lease deed was executed in favour of Savan Haji in respect of the room referred to in Ext.A1. Plaintiff No.1 alleged that defendant No.3 was not available to join as a plaintiff and hence she was impleaded as a defendant and sought recovery of possession of the schedule room on behalf of deceased plaintiff No.1 and defendant No.3. According to deceased plaintiff No.1, her children were conducting business in the schedule room under the supervision of deceased defendant No.1 but the latter managed to create a document (concerning the business) in favour of defendant No.2, his daughter. Defendant Nos.1 and 2 denied that deceased defendant No.1 was looking after the affairs of deceased plaintiff No.1 and defendant No.3. It is incorrect to say that deceased defendant No.1 created false documents. They admitted that the schedule room was leased to deceased plaintiff No.1 and defendant No.3 as per kaichit dated 13.5.1966. According to them on 30.8.1967 deceased plaintiff No.1 and defendant No.3 created an oral lease in favour of deceased defendant No.1 for a rent of Rs.45/- per month and the rent was paid till 30.3.1978 to Kadheeja, daughter of deceased plaintiff No.1 and her husband. They claimed that the business belonged to deceased defendant No.1 and that the license for RSA No.635/2003 3 the same was taken in the name of defendant No.2. Deceased plaintiff No.1 filed I.A.No.2160 of 1983 for amendment of the plaint to state that defendant No.3 has no right or interest in the shoproom and that the lease is exclusively in favour of deceased plaintiff No.1. She alleged that deceased defendant No.1 mischievously got the name of defendant No.3 also included in the lease deed dated 13.5.1966 executed in favour of wife and children of Savan Haji in respect of the schedule room. The application was opposed by defendant Nos.1 and 2. Learned Munsiff dismissed I.A.No.2160 of 1983. Learned Munsiff granted a decree in favour of deceased plaintiff No.1 for recovery of possession of the schedule room on behalf of herself and on behalf of defendant No.3 and rejecting the plea of oral lease in favour of deceased defendant No.1. Defendant Nos.1 and 2 challenged the judgment and decree in A.S.No.230 of 1984. Deceased plaintiff No.1 filed cross-objection challenging dismissal of I.A.No.2160 of 1983. In the meantime defendant No.3 assigned the half share she claimed in the lease hold right over the schedule room to defendant Nos.1, 2 and 7 to 9 on 9.11.1984. Defendant Nos.1 and 2 filed I.A.No.91 of 1986 to amend the appeal memorandum stating that deceased plaintiff No.1 who has only half share in the leasehold right is not entitled to recover possession of the schedule room from defendant Nos.1, 2 and 7 to 9 who acquired the remaining half share from defendant No.3. Learned Sub Judge who heard the appeal allowed I.A.Nos.2160 of 1983 and 91 of 1986. Judgment and decree of learned Munsiff were set aside as per judgment dated 10.2.1987 and the case was RSA No.635/2003 4 remanded to the trial court for disposal after incorporating the amendments. As per amendment of the plaint paragraph No.2 has been deleted and a new paragraph has been incorporated which stated that the shoproom in the possession of Savan Haji was assigned to deceased plaintiff No.1 as her sreedhana by deceased defendant No.1 as per Ext.A1 dated 15.1.1945, defendant No.3 has only a right to collect the profit beyond Rs.120/- accordingly Savan Haji was paying Rs.21.25 per month to deceased plaintiff No.1 and Rs.7.50 per month to defendant No.3. When deceased plaintiff No.1 wanted Savan Haji to vacate the said room there was a mediation involving deceased defendant No.1 and others and a settlement was reached. As per that, schedule room belonging to the wife and children of Savan Haji was entrusted to deceased plaintiff No.1 as per kaichit dated 13.5.1966. But it is later learnt that deceased defendant No.1 mischievously included the name of defendant No.3 also in the lease deed. The lease deed is in the possession and custody of deceased defendant No.1. Deceased plaintiff No.1 learned that name of defendant No.3 also was included in the kaichit dated 13.5.1966 in respect of the schedule room as she was entitled to receive Rs.7.50 from Savan Haji in respect of the room referred to in Ext.A1 and belonging to deceased plaintiff No.1. But, defendant No.3 has no right in the schedule room and the lease is exclusively in favour of deceased plaintiff No.1. While so defendant No.1 died on 23.10.1988. Defendant Nos.2 and 7 to 13 are the legal representatives. Plaintiff No.1 assigned her leasehold right over the schedule room to additional plaintiff No.2 RSA No.635/2003 5 as per registered deed dated 11.11.1988. After amendment of the plaint defendant Nos.1, 2 and 7 to 9 filed additional written statement denying that lease of the schedule room was exclusively in favour of deceased plaintiff No.1. They asserted that lease was in favour of deceased plaintiff No.1 and defendant No.3. They claimed that as per a registered document dated 9.11.1984, defendantNo.3 assigned her half share in the leasehold right to defendant Nos.1, 2 and 7 to 9 and hence they are not liable to be evicted at the instance of deceased plaintiff No.1 who is only a co-sharer of the leasehold right. Leaned Munsiff found on the evidence (after the remand) that claim of defendant Nos.1 and 2 that deceased defendant No.1 is a lessee of the schedule room is not correct but learned Munsiff was not inclined to accept the case of plaintiffs that the lease of the shoproom was exclusively in favour of deceased plaintiff No.1. Learned Munsiff held that there is no evidence to show the exclusive right of deceased plaintiff No.1 over the schedule room. The assignment of half share of leasehold right of defendant No.3 in favour of defendant Nos.1, 2 and 7 to 9 was found to be valid and hence it was held that additional plaintiff No.2 was not entitled to evict the defendants. Holding so, the suit was dismissed. That has been confirmed by the first appellate court. Hence, the Second Appeal. Following substantial questions of law are framed for a decision: i. Whether the stipulation in Ext.A1, sreedhana deed imposing an obligation that plaintiff No.1 shall pay to her nieces who are not parties to Ext.A1, income whenever it exceeds Rs.120/- per year would create a co-ownership right RSA No.635/2003 6 in the property or affect the absolute title vested in the plaintiff No.1? ii. Whether an obligation attached to the property gifted, can be validly transferred to a lease deed in respect of another property, so as to make it a co- ownership property? iii. Whether lease deeds created without consent or knowledge of plaintiff No.1 would be binding on her and would affect her title to the properties? iv. Whether by acquisition of landlord's right of a leasehold building, the tenancy will not merge with the superior right of ownership and preclude the the owner from claiming tenancy right? 3. It is contended by learned counsel for supplemental plaintiff No.2 that the courts below misread the evidence on record to hold that exclusive leasehold right of deceased plaintiff No.1 in respect of the schedule room is not proved. Learned counsel submitted that courts below did not take into account that this is an uneven battle between a poor, illiterate lady (deceased plaintiff No.1) and an intelligent and scheming advocate clerk (deceased defendant No.1). According to the learned counsel there is no evidence to show that defendant No.3 had any leasehold right over the schedule room. Learned counsel has drawn my attention to the evidence of DW3, one of the defendants and husband of defendant No.3. Learned counsel for contesting defendants per contra argued that none of the substantial questions of law framed do arise for a decision in this case since those questions either related to the right of defendant No.3 in the shoproom in the possession of Savan Haji and referred to RSA No.635/2003 7 in Ext.A1 which is not germane for consideration in this case, or a decision of the courts below on evidence which did not involve any substantial question of law. Learned counsel submitted that on evidence courts below were not inclined to accept the case of plaintiffs that leasehold right exclusively belonged to deceased plaintiff No.1 and accordingly the suit was dismissed. That according to the learned counsel involved no substantial question of law requiring interference by this Court. 4. The suit was filed in the year 1979. Accepting the case of deceased plaintiff No.1 that lease in respect of schedule room is in favour of herself and defendant No.3, learned Munsiff initially granted decree for eviction. It is as per order dated 10.2.1987 on I.A.No.2160 of 1983 that plaint was amended. It is averred in the plaint by amendment that defendant No.3 has no right over the schedule room and that name of defendant No.3 happened to be in the kaichit dated 13.5.1966 on account of a mischief played by deceased defendant No.1. Deceased plaintiff No.1 was under the impression that deceased defendant No.1 included the name of defendant No.3 also in the kaichit dated 13.5.1966 executed in favour of wife and children of Savan Haji because defendant No.3 was entitled to receive Rs.7.50 per month from Savan Haji in respect of the shoproom referred to in Ext.A1. In otherwords, right from 13.5.1966 upto the filing of I.A.No.2160 of 1983 atleast for about 17 years deceased plaintiff No.1 was of the view that lease in respect of the schedule room was in favour of herself and defendant No.3. What she stated in the plaint RSA No.635/2003 8 originally is that she is seeking recovery of possession on behalf of herself and defendant No.3 and that the latter was impleaded as such only because she was not available to join as a plaintiff. It is not disputed by the deceased plaintiff No.1 that in the kaichit dated 13.5.1966 defendant No.3 is shown as a co-tenant of the schedule room along with deceased plaintiff No.1. According to deceased plaintiff No.1, the lease deed is in the custody of deceased defendant No.1 but, he denied that. Lease deed dated 13.5.1966 is not available in this case but, fact remained that in that lease deed defendant No.3 is also shown as a co- tenant of the schedule room along with deceased plaintiff No.1. Now the question for consideration is whether courts below are legally correct in holding that plaintiffs have not shown that the lease is exclusively in favour of deceased plaintiff No.1 and that defendant No.3 is only a name lender in the lease deed merely for the reason that she was entitled to receive Rs.7.50 per month from Savan Haji in respect of the shoproom referred to in Ext.A1. 5. The substantial questions of law Nos.1 and 2 framed are in respect of the respective right of deceased plaintiff No.1 and defendant No.3 in the shoproom in the possession of Savan Haji and referred to in Ext.A1. In my view it is not necessary to enter into a decision as to the nature and character of right defendant No.3 has in the said shoproom in this proceeding since question for consideration is only whether courts below are legally correct in holding that the case of deceased plaintiff No.1 as per the amended plaint that lease in respect of the schedule room is exclusively in her favour RSA No.635/2003 9 notwithstanding that kaichit dated 13.5.1966 mentioned defendant No.3 also as a co-tenant along with her is not established. Therefore question Nos.1 and 2 do not arise for a decision in this appeal. 6. Now the crucial question is whether the courts below are justified in holding against the claim of plaintiffs that the exclusive lease hold right over the shoproom remained with deceased plaintiff No.1. Learned counsel for supplemental plaintiff No.2 has referred to me the oral and documentary evidence adduced by the parties. The documents produced by the defendants are in respect of the claim made by defendant Nos.1 and 2 regarding the oral lease in favour of deceased defendant No.1. Learned Munsiff found that those documents are either not acceptable or not sufficient to prove the alleged oral lease in favour of deceased defendant No.1 and disbelieved the case of defendant Nos.1 and 2 regarding that oral lease. That finding is not sufficient to hold in favour of supplemental plaintiff No.2 or against the contesting defendants regarding the exclusive leasehold right of deceased plaintiff No.1 in the schedule room. I stated that the kaichit dated 13.5.1966 is not before court whatever be the reason thereof. There is no evidence to show that the said kaichit was in the custody of deceased defendant No.1 and has been withheld by him. Plaintiffs did not take steps to examine landlords of the schedule room, wife and children of Savan Haji to show with whom the rental arrangement was. According to the plaintiffs, Savan Haji was siding with the defendants but there RSA No.635/2003 10 is no evidence in that line and at any rate that does not absolve the responsibility of plaintiffs to examine the landlords and prove that the lease is exclusively in her favour. Particularly in view of the admitted fact that the rent deed mentioned defendant No.3 also as a co-tenant and in view of the averments in the plaint originally made and incorporated by amendment. Exts.B2 to B14 related to claim of defendant Nos.1 and 2 regarding oral lease in favour of defendant No.1 and hence are not relevant for consideration in the Second Appeal. Exts.X1 to X4 are produced by Savan Haji as per the direction of the trial court (he was not examined as a witness). Ext.X1 is a reply notice dated 17.1.1972 issued to plaintiff No.1 on behalf of Savan Haji. It refers to the kaichit dated 16.9.1949 executed by Savan Haji in respect of the shoproom covered by Ext.A1 in favour of plaintiff No.1 and defendant No.3. Ext.X1 states that thereafter plaintiff No.1 and defendant No.3 demanded vacant possession of the said room and there was a mediation and settlement. As per that settlement, schedule room belonging to the wife and children of Savan Haji was given to 'your clients' for business of plaintiff No.1 and defendant No.3. There is also reference to the kaichit in favour of the wife and children of Savan Haji executed on 13.5.1966. Ext.X1 gives the impression that to the notice issued to Savan Haji on behalf of deceased plaintiff No.1 and defendant No.3 he had replied that schedule room was taken on rent by deceased plaintiff No.1 and defendant No.3 for their business. Ext.X2 is another notice dated 7.7.1972 issued to Savan Haji on behalf of deceased plaintiff No.1 where, the statements RSA No.635/2003 11 in Ext.X1 are denied . Ext.X2 states that the schedule room was taken on rent and business is being run by defendant No.1. It is interesting to note from Ext.X2 that it is stated on behalf of deceased plaintiff No.1 that she has no interest at all in the schedule room and that the said room was given to defendant No.1 in violation of the premise given by Savan Haji to deceased plaintiff No.1. Ext.X3 is the reply to Ext.X2 on behalf of Savan Haji where he asserted his statements in Ext.X1. Ext.X4 is a notice dated 12.6.1974 issued to Savan Haji on behalf of deceased plaintiff No.1 as instructed by supplemental plaintiff No.2. There, it is stated that Savan Haji and defendant No.1 fabricated documents. DW2, an advocate was examined to prove Exts.X1 to X4. Trial court was not inclined to act upon the evidence of DW2 and Exts.X1 to X4 on the premise that the notices and replies caused to be issued on behalf of deceased plaintiff No.1 by deceased defendant No.1 who was an advocate clerk. Even if it is assumed that Exts.X1 to X4 are issued at the instance of deceased defendant No.1 that does not in any way advance the case of deceased plaintiff No.1 that she is the exclusive lessee of the schedule room. Thus documentary evidence do not in any way support the case of deceased plaintiff No.1 and instead, Exts.X1 to X4 would defeat her case. 7. So far as the oral evidence is concerned, deceased plaintiff No.1 spoke as PW1. Her evidence would show that she has no idea about the shoproom or the rental arrangements. But she originally stated in the plaint that lease was in favour of herself and defendant No.3, that allegation stood for RSA No.635/2003 12 years and later she got the plaint amended to say that the lease is exclusively for herself and defendant No.3 is only a name lender in the kaichit. Deceased defendant No.1 was examined as DW1. Learned counsel for supplemental plaintiff has referred to me the evidence of DW1 and stated that evidence lacks consistency and truthfulness. Evidence of DW1 is confronted with Exts.A8 and 9. True, evidence given by DW1 is inconsistent but, he has given evidence on behalf of himself and defendant No.2 regarding the alleged oral lease in his favour and not regarding the lease in respect of the shoproom in favour of deceased plaintiff No.1 and defendant No.3. At one stage, he pleaded ignorance about the lease in favour of deceased plaintiff No.1 and defendant No.3. Even if it is assumed that the evidence of DW1 is not reliable that only concerned his claim and cannot affect the legal representatives of defendant No.3 and their case that defendant No.3 was a co-tenant of the schedule room along with plaintiff No.1. DW3 is the husband of defendant No.3 and himself, a defendant. He stated that the lease was in favour of deceased plaintiff No.1 and defendant No.3. But, ofcourse in cross-examination he stated that he does not know who was liable to pay rent of the schedule room to the wife and children of Savan Haji. Himself or defendant No.3 has not so far given rent to Savan Haji. Even if it is so assumed I must bear in mind that there is no evidence to show that rent was paid by deceased plaintiff No.1 alone at any rate, for her alone. I must also bear in mind that original averments in the plaint were that lease was in favour of deceased plaintiff No.1 and defendant No.3 RSA No.635/2003 13 and recovery of possession the schedule room was sought on behalf of defendant No.3 as well. Having stated so, the burden was heavier on plaintiffs to show that the said statement was not correct and that the lease was exclusively in favour of deceased plaintiff No.1. So far as DW4 is concerned, his evidence is of no relevance as he was examined to prove the alleged oral lease in favour of defendant No.1. I have gone through the evidence and considered the submission made by learned counsel on both sides. There is no acceptable or reliable evidence to show that lease was exclusively in favour of deceased plaintiff No.1. There is no material to hold, notwithstanding that in the kaichit dated 13.5.1966 defendant No.3 is also mentioned as a lessee of the schedule room that deceased plaintiff No.1 alone was the tenant of the schedule room. So much so courts below are legally justified in holding against deceased plaintiff No.1 in that regard. No substantial question of law is involved as the finding of the courts below rest on an appreciation of the evidence. Resultantly, the Regular Second Appeal fails. It is accordingly dismissed. No cost. THOMAS P.JOSEPH, Judge. cks RSA No.635/2003 14 Thomas P.Joseph, J. R.S.A.No.635 of 2003 JUDGMENT 6th January, 2010.