IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 RSA.No. 274 of 2010() -------------------------------- AS.9/2006 of PRL.SUB COURT,THALASSERY OS.358/2002 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT/ RESPONDENT/DEFENDANT --------------------------------------- CHERIYAKKADAVAN SURENDRAN, S/O.GOVINDAN, AGED 50 YEARS, BUSINESS, NEAR V.U.P. SCHOOL, KEEZHUR, KEEZHUR AMSOM AND DESOM, THALASSERI TALUK. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.T.P.SAEED RESPONDENT(S)/APPELLANT/ PLAINTIFF ----------------------------------------------------------- POOKANDY MANOHARAN, S/O.PYTHAL, AGED 55 YEARS, NO OCCUPATION. VEGETABLE TRADER, ASHOKA HOTEL BUILDING MELE BUS STAND, IRRITTY.4 ADV. SRI.P.U.SHAILAJAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- RSA No.274 of 2010-G ------------------------------------- Dated 3rd August 2010 Judgment The defendant in OS No.358/02 before the Munsiff's Court, Kuthuparamba, who suffered a decree at the hands of the lower Appellate Court, is the appellant before this Court. The facts and parties are hereinafter referred to as they are available before the Trial Court. 2. The plaintiff claimed to have been inducted into possession of the plaint schedule property, which is part of Ashoka Hotel Building, by virtue of a lease, said to have been taken from one Janaki Teacher. According to the plaintiff, it was an oral entrustment and he came into possession of the building from 23.07.1977, agreeing to pay a monthly rent of Rs.60/-, which was enhanced to Rs.100/- from 1987 onwards. The plaintiff claimed that he had paid rent to Janaki Teacher till 2001. Various litigations are made mention of in the plaint, which are not RSA 274/10 2 very relevant for the present purpose. Pointing out that the defendant was trying to trespass into his property and evict him, the suit was laid for injunction. 3. The defendant resisted the suit. He denied that the plaintiff was a lessee of the premises as claimed by him. According to the defendant, it was a portion of the building let out to him for conducting a hotel and the plaintiff had trespassed into that portion. The plaintiff had no right to remain in possession and therefore, he prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 7 and documents marked as Exts.A1 to A76 from the side of the plaintiff. The defendant examined DWs1 to 4 and had Exts.B1 to B20 marked. Exts.C1 and C2 are the Commissioner's report and the plan. 5. The Trial Court, on an evaluation of the evidence, found that the plaintiff was unable to establish the claim put forward by him and was also unsuccessful in RSA 274/10 3 proving his possession of the property involved in the proceedings. Consequently, the suit was dismissed. 6. The plaintiff carried the matter in appeal as AS No.9/06. On an evaluation of the evidence, the Appellate Court felt otherwise and came to the conclusion based on the oral testimony of the witnesses examined by the plaintiff that there was an oral lease in favour of the plaintiff and also that he was conducting vegetable business in the premises. Accordingly, the Judgment and decree of the Trial Court was reversed and a decree was granted in favour of the plaintiff. The said Judgment and decree are assailed in this appeal. 7. The following questions of law are raised in this memorandum of appeal : I) Is it legal to grant a decree of injunction having found that the plaintiff has failed to prove the lease pleaded by him ? II) Is not the position of the plaintiff that of a trespasser as the plaintiff failed to prove the lease set up by him RSA 274/10 4 and in such circumstance, is it legal to exercise the discretionary jurisdiction of the court in favour of the plaintiff ? III) Is not the judgment of the first appellate court the result of misconstruing and mis-interpreting the evidence on record and vitiated by failure to consider the evidence on record ?” 8. The learned counsel for the appellant pointed out that the story of lease put forward by the defendant is highly improbable when viewed in the light of the previous proceedings taken by the so called lessers of the property. He also pointed out that there was absolutely no evidence to show that there was a lease as claimed by the plaintiff. A lease, though claimed by the plaintiff, there was no lease deed and there were no rent receipts to show that there was in fact, a lease as claimed by him. The learned counsel further pointed out that the lower Appellate Court was greatly impressed by the voluminous evidence adduced by the plaintiff both oral and documentary. RSA 274/10 5 According to the learned counsel, none of the documents produced by the plaintiff would show that it relates to the premises involved in this proceedings and the lower Appellate Court had erred in law in accepting those documents, to find in favour of the plaintiff. According to the appellant's counsel, the plaintiff was a rank trespasser and he had no right to retain possession of the property. 9. Per contra, the learned counsel for the respondent pointed out that the lower Appellate Court, which is the final court on facts, has considered the evidence in considerable detail and was impressed by the testimony of PWs 2 to 7, who spoke in favour of the plaintiff and came to the conclusion that the case put forward by him was true. The learned counsel drew the attention of this court to the finding of the lower Appellate Court that the defendant had no case that the plaintiff was doing business elsewhere and therefore, the document produced by him necessarily relates to the premises involved in this proceedings. Therefore, it was contended that there are no RSA 274/10 6 grounds to interfere with the Judgment of the lower Appellate Court. 10. There seems to be no dispute regarding the fact that the property originally belonged to one Kannan. Yasodha and Janaki were his daughters. By virtue of a will executed by late Kannan, the property devolved on Yasodha and Janaki. Considerable materials are produced in this case to show that the premises involved was let out to the defendant and there have been various proceedings regarding the premises, which are not very relevant for the present purpose and hence they are not being adverted to. 11. The plaintiff in this case set up an oral lease from 23.07.1977. His claim was that the monthly rent was initially Rs.60/- which was later enhanced to Rs.100/-. He claims that he used to pay rent to Janaki, but she was not in the habit of issuing receipts for the rent so received. The learned counsel for the appellant pointed out that the case of the plaintiff is that in one of the proceedings, as soon as the delivery was obtained after evicting the tenant, it was RSA 274/10 7 let out to the plaintiff even without waiting for the delivery to be recorded in court. This is highly improbable and that shows that the claim of oral lease cannot be sustained. 12. It may look odd. But, there is evidence of PWs 2 to 7 to show that the plaintiff had come into possession of the property by virtue of a lease and he had been continuing in possession thereafter. There is sufficient evidence to show that even though Yasodha and Janaki were co-owners of the property, for all practical purposes, it was Janaki, who was managing the property and was conducting litigations in respect of the property. Under such circumstances, if the plaintiff sets up a lease from Janaki, there is nothing unusual about it. It is true that there is no documentary evidence as such to evidence the lease. One has to go by the evidence of PWs 2 to 7. One must recollect that the claim is one of oral lease. Of course, the plaintiff also claimed that he had been paying rent. But, according to him, Janaki was not in the habit of issuing receipts for the rent received. Placed in the RSA 274/10 8 situation as the plaintiff is, it is too much to insist that in such cases, he should have rushed to the Rent Control Court, complaining about non-issuance of receipts. After all, it is only a small portion which was in his possession. The lower Appellate Court in contradistinction to the Trial Court, has chosen to accept the evidence of PWs 2 to 7 to come to the conclusion that the premises was taken on lease by the plaintiff. It could not be said that the finding is perverse or unwarranted by the evidence on record. It is a plausible view. 13. As rightly noticed by the lower Appellate Court, the plaintiff has produced several documents to show that he had been conducting vegetable business and has obtained various communications from the statutory authorities. It is true that those documents as such do not show that the business was being carried on in the premises in question and there is nothing to connect those documents to the premises involved in this proceedings. But, as rightly noticed by the lower Appellate Court, there is RSA 274/10 9 no case for the defendant that the plaintiff was doing business elsewhere and the documents related to that premises. I am not forgetting the fact that the defendant has a case that the plaintiff was conducting vegetable business in the puramboke land and he may have obtained communications with reference to the business. But, one among such records shows that he was carrying on the business in a premise, but, had stocked the vegetables in a puramboke land and the Panchayat had asked him to remove it immediately. It is difficult to believe that he would have paid profession tax or obtained licence etc. for conducting the business in the puramboke land. If on the basis of the documents produced by the plaintiff, the lower Appellate Court was inclined to accept the version that he was in possession of the property, it could not be said that the finding was unwarranted by the evidence on record. 14. According to the defendant, the plaintiff has trespassed into a portion of the premises where he was conducting a hotel and kept his articles there. It is strange RSA 274/10 10 to note that he took no action against the plaintiff or he did not complain anywhere regarding the said encroachment. It is interesting to note that till the death of Janaki, the plaintiff says that there was no problem and the troubles started only thereafter. Whether the said contention is true or not is a different question. 15. But the fact remains that even after accusing the plaintiff to be a trespasser, the defendant did not feel it necessary to take any action against him. 16. The preponderance of probabilities, as rightly noticed by the lower Appellate Court, is in favour of the plaintiff. It is true that there is no foolproof evidence in favour of the plaintiff. But, the lower Appellate Court has chosen to accept the oral and the documentary evidence to come to the conclusion that there is a lease. It is difficult to believe that the plaintiff would have simply trespassed into a portion of the premises where the hotel was being conducted and reduced it into his possession. There is no reason why the evidence of PWs 2 to 7 should be simply RSA 274/10 11 discarded and as rightly pointed out by the learned counsel for the respondent in this appeal, the lower Appellate Court, which is the final court on facts, has chosen to accept the version of the plaintiff and found in his favour. Unless there are compelling reasons, this Court will not be justified in interfering with the Judgment of the lower Appellate Court under S.100 CPC. No substantial questions of law arise for consideration in this appeal. The result is that this appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta RSA 274/10 12