IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 RSA.No. 1120 of 2011() ---------------------- AS.186/2009 of SUB COURT,NEYYATTINKARA OS.662/2008 of I ADDL.MUNSIFF COURT, ,NEYYATTINKARA .................... APPELLANT/APPELLANT/RESPONDENT:- -------------------- ISMAYIL MUHAMMED BASHEER AGED 65 YEARS A.V.STREET, BALARAMAPURAM VENGANOOR DESOM, PALLICHAL VILLAGE NEYYATTINKARA TALUK. BY ADV. SRI.G.SUDHEER RESPONDENT/RESPONDENT/PLAINTIFF: --------------- FATHIMA BEEVI, AGED 47 YEARS, REHIMA MANZIL, BALARAMAPURAM, THALAYIL DESOM, ATHIYANNOOR DESOM - 695 001. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1120 of 2011 ............................................ DATED THIS THE 4th DAY OF OCTOBER, 2011 JUDGMENT Defendant in O.S.662 of 2008 on the file of Additional Munsiff Court, Neyyattinkara is the appellant. Plaintiff is the respondent. The suit was filed for eviction and arrears of rent and damages for use and occupation. Respondent would contend that appellant obtained the plaint schedule building agreeing to pay a monthly rent of Rs.250/- and paying an advance amount of Rs.27,000/- on 1.7.1997 and executed Ext.A5 rent deed and has been in possession of the same since then. Rent was subsequently revised to Rs.400/- per month and it was being paid by the appellant till September 2005. Receipts were given for payment of the rent. The tenancy was terminated by sending Ext.A6 notice dated 4.6.2008 demanding surrender of possession with arrears of rent. Appellant did not surrender. Hence the suit was filed. Appellant resisted the suit contending that there is no landlord tenant relationship between the appellant and the respondent. It was contended that he took a building bearing RSA 1120/2011 2 BVII/106 from Fathima Beevi who is none other than the mother of the first respondent on rent in 1993 and subsequently he forcibly took possession of the plaint schedule building which was behind the building taken on rent and he renovated it and he has been in possession of the same. It is contended that he has perfected title by adverse possession in respect of the plaint schedule building and therefore respondent is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence found that appellant is the tenant under the respondent and was liable to pay monthly rent at the rate of Rs.400/- per month, though Ext.A5, the rent deed, was not relied on. Learned Munsiff also found that as contended by the respondent, rent has been in arrears from October 2005 onwards. The suit was decreed directing the appellant to surrender vacant possession of the building and also permitted the respondent to realise Rs.13600/- being the past arrears of rent and also Rs.400/- per month as damages for use and occupation from August 2008 till surrender. Appellant challenged the decree and judgment before Sub Court, Neyyattinkara in A.S.186 of 2009. Learned Sub Judge, on re- RSA 1120/2011 3 appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The learned counsel pointed out that even in the plaint respondent admitted that at the time of granting the lease appellant paid Rs.27,000/- as advance and he had adjusted the said advance amount to the extent of Rs.13,600/- being the arrears of rent from October 2005 to July 2008 and claimed only the balance amount and sought to deposit the balance of the advance amount at the time of surrender and possession, but learned Munsiff did not consider the said adjustment and offer of the respondent. Learned counsel argued that by the decree granted by the court below, respondent is granted not only the arrears of rent but also permitted to retain the advance amount which he is not legally entitled. Learned counsel argued that though learned Munsiff did not rely on Ext.A5 rent deed, first appellate court accepted Ext.A5 in spite of the difference in the signature of appellant seen in Ext.A5. Learned counsel would argue that on proper appreciation of evidence, it should have been found that RSA 1120/2011 4 appellant is not the tenant of the plaint schedule building and instead he is in possession of the property after it was trespassed and he renovated it and has been in possession of the property since 1993 as absolute owner and therefore the decree for eviction is not sustainable. 4. Though Ext.A5 was not relied on by the learned Munsiff, based on the evidence on record, it was found that the building originally belonged to PW1, the mother and under Ext.A1 settlement deed she transferred her rights in favour of the respondent and respondent is the present landlord of the plaint schedule building. Learned Munsiff also found that though appellant raised a contention that he has perfected title by adverse possession, he did not establish that fact. Learned Munsiff also found that appellant is the tenant with liability to pay Rs.400/- per month and he defaulted to pay rent subsequent to October, 2005. Learned Sub Judge on re-appreciation of the evidence confirmed these factual findings. In addition, learned Sub Judge in the first appeal, relied on Ext.A5 to confirm the findings of learned Munsiff that appellant is the tenant of the plaint schedule building under the respondent and he is liable to RSA 1120/2011 5 pay monthly rent of Rs.400/- as claimed by the respondent. On going through the judgments of the courts below, I find no reason to interfere with the factual findings entered by the courts below that respondent is the tenant of the plaint schedule building and the lease was granted by the respondent in favour of the appellant and rent was subsequently enhanced to Rs.400/-. Appellant has no case that he had paid rent subsequent to October 2005 as claimed by the respondent. In such circumstances, finding of the courts below that respondent is the landlord and appellant is the tenant and appellant had not paid the rent subsequent to October 2005 are perfectly correct and are in accordance with evidence. The evidence also establish that under Ext.A6 notice, the tenancy was terminated by the respondent. In such circumstances, the decree for eviction is perfectly correct. As the factual finding that appellant has defaulted to pay rent from October 2005 is in accordance with the evidence, no interference is warranted on that aspect also. True, when the respondent offered to adjust the advance of Rs.27,000/- received, trial court omitted to take note of that fact. But on that ground, I do not find it necessary to admit the appeal RSA 1120/2011 6 as even if arrears of rent from October 2005 to July 2008 is adjusted and Rs.13,400/- remains out of the advance amount, the subsequent arrears payable by the appellant to the respondent is more than the balance. Hence it would suffice, if it is made clear that appellant is bound to adjust the advance amount of Rs.27,000/- and is only entitled to realise the balance amount. Appeal is dismissed. 5. Learned counsel appearing for appellant then submitted that as the appellant has been in possession of the building, he be granted time to surrender vacant possession of the building. If appellant files an affidavit within 15 days from today, unconditionally undertaking to surrender vacant possession of the building, on the expiry of five months from today, the decree shall not be executed for five months. It is made clear that if the affidavit is not filed within 15 days from today, the decree holder is entitled to execute the decree. M.SASIDHARAN NAMBIAR, JUDGE lgk