IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 RSA.No. 540 of 2009() --------------------- AS.83/2003 of DISTRICT COURT, PALAKKAD OS.611/1994 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------- KASINATH, S/O. RAMASWAMI PILLAI, CHAVALAKKARA STREET, VADAKKANTHARA POST, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------- R.KUMARAN, S/O. ULAKANATH, HOUSE NO.5-1/1, THERMAL NAGAR, MUTHAYAPURAM VILLAGE, TUTRICORN TALUK, CHITHAMBARANATH DIST., TAMIL NADU. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No. 540 of 2009 --------------------------------------- Dated this 16th day of September 2009 JUDGMENT This second appeal is drawn from judgment and decree of the District Court, Palakkad in AS.No.83 of 2003 which arose from judgment and decree of the Sub Court, Palakkad in O.S.No.611 of 1994. Respondent filed suit for recovery of possession of the plaint schedule room with mesne profits, past and future. Respondent claimed that the property originally belonged to his maternal grant mother, Sarojini Ammal who executed Ext.A13, assignment deed in his favour on 28-09-1993 for consideration and put him in possession of the shop room. It is his further case that appellant, son of said Sarojini Ammal accommodated the tamil sangham in the said room without his consent but on getting notice from respondent, they vaccated the room. Appellant occupied the schedule room. He also sent a notice to the respondent disputing assignment in his favour by Sarojini Ammal and claiming to be a lessee of the room as per lease deed dated 05-02- 1988. Respondent contended that appellant had no right in the room. Appellant while denying the title of respondent contended that Ext.A13, assignment deed is got executed fraudulently under misrepresentation and exercising undue influence on Sarojini Ammal. Appellant claimed that some time before the alleged execution of Ext.A13, Sarojini Ammal was taken by respondent and others to their R.S.A.No.540 of 2009 2 residence where the document was got executed. The further claim is that he is tenant of the shop room protected by Act 2 of 1965. Learned Sub Judge found that Ext.A13 is valid and that contention of appellant that he is a tenant is not proved. Accordingly decree for recovery of possession of plaint shop room with mesne profits was granted. Appellant took up the matter in appeal. Learned District Judge while confirming the finding of the trial court modified mesne profits payable by the appellant. Appellant is still aggrieved and has come up in second appeal urging the questions. (i) Ext.A13 vitiated by fraudulent misrepresentation and undue influence among other and committed on the executor?. (ii) Is the first appellate court correct in holding that appellant is not a tenant entitled to the protection of Act 2 of 1965?. 2. It is contended by learned counsel that courts below failed to take into consideration the circumstances under which Ext.A13 was got executed and the recitals in Ext.A13 regarding passing of consideration. Learned counsel contended that on evidence the courts below ought to have answered the issue in favour of the appellant. 3. That Sarojini Ammal had executed Ext.A13 dated 28-09- 1993 in favour of respondent is not practically not disputed since the contention of appellant is that the said document is vitiated by fraud, R.S.A.No.540 of 2009 3 misrepresentation and undue influence. Under Order VI rule 4 of the Code of Civil Procedure (for short, “the Code”) when fraud, misrepresentation, or undue influence is set up as a ground of attack, the person setting up those grounds is required to give material particular of such fraud, misrepresentation and undue influence. I have gone through the copy of written statement of appellant given to me by learned counsel. The averments in it do not satisfy the requirements of order VI rule 4 of the Code. Apart from the statement that Sarojini Ammal was taken by respondent and others to their residence sometime before execution of the document, there is no details of the alleged fraud, misrepresentation and undue influence given in the written statement. A bald statement in that regard cannot be taken as a valid challenge to the document executed by Sarojini Ammal. Ext.A13 is a registered document. Its genuineness can be presumed. 3. Yet another contention advanced by learned counsel is regarding the consideration stated in Ext.A13. Though sale consideration is stated as Rs.1,10,000/- the recital is that only Rs.10000/-, was paid to Sarojini Ammal and rest of the amount was received by her earlier from respondent for discharge of her liabilities. It has come in evidence and Exts.A6 to A9 show that Sarojini Ammal was indebted even before execution of Ext.A13. Therefore, the recital R.S.A.No.540 of 2009 4 in Ext.A13 that amounts were received from the respondent even prior to Ext.A13 need not be disbelieved. At any rate it has to be remembered that Sarojini Ammal though executed Ext.A13 on 28-09- 1993 died on much later even as per submission of learned counsel for appellant. She never challenged Ext.A13. There is no evidence to show that Ext.A13 is vitiated by any reason as contended by the appellant. It is also to be remembered that even as per the contention of the appellant Ext.A13 is only voidable but, no steps have so far as taken to avoid Ext.A13 in accordance with provisions of law. 4. So far as claim of tenancy is concerned Exts.B1 to B4 are relied upon. Ext.B1 is said to be a kai book written on a paper from a note book which according to the appellant evidenced tenancy in his favour. Ext.B1 dated 05-02-1988 and as per evidence of appellant as DW1 his sister, Indirani wrote Ext.B1 but the said Indirani is not examined as a witness. Ext.B1 does not mention the name of its scribe, there is no description of the rent and to whom tenancy was granted, is also not mentioned. Ext.B1 is not signed by anybody as a witness. Appellant was not able to produce any receipt of payment of rent. Though he claimed that he had business in the room in question for a long time he was not able to produce license either from the local authority or from the Sales Tax Authority for such business. For non production of rent receipts the explanation given by the appellant is R.S.A.No.540 of 2009 5 not satisfactory. According to the appellant rent payable for twenty years and ten months was adjusted in the advance paid. That is quiet an incredible version. Even Ext.B1 do not indicate that the tenancy was created for such a long period. There is no evidence to show that appellant is a tenant of the room in question. Hence he is not entitled to get protection under Act 2 of 1965. I have gone through the judgment under challenge and also substantial question of law urged in the memorandum of second appeal. The question raised did not involve any substantial question of law. This court while considering second appeal cannot interfere with the finding of fact entered by the courts below so far as it is not shown to be perverse or, without any evidence at all. The second appeal fails. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/