IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 RSA.NO. 122 OF 2010() --------------------------------- AS.6/2006 OF PRINCIPAL SUB COURT,ATTINGAL OS.118/2002 OF MUNSIFF COURT,ATTINGAL .................... APPELLANT/RESPONDENT/DEFENDANT ------------------------------------------------------ MOHAMMED HANEEFA,ROOM NO.M.P.XI/682, FEROZ BLDG.,MALAPPURAM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KVP.JAYALEKSHMY SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): APPELLANT/PLAINTIFF ------------------------------------------------------- ABDUL RAHIM,S/O.MUHAMMEDKUNJU, IDUPADIKKAL VEEDU, KOONTHALLOOR, CHIRAYINKEEZHU VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.122 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of March, 2010 J U D G M E N T --------------------- Defendant in O.S. No.118 of 2002 of the court of learned Munsiff, Attingal has brought this Second Appeal challenging decree for eviction passed by the first appellate court against him in reversal of the judgment and decree of the trial court. It is not disputed that appellant is a tenant of the shop room referred to in the plaint schedule though he does not admit tenancy under the respondent. Respondent claimed that the building where the schedule room is situated belonged to him as per Ext.A1, partition deed No.2385 of 1994. Appellant is a tenant of the schedule room, the monthly rent being Rs.300/- and tenancy was created in favour of the appellant at a time when respondent was abroad. He returned to his native place and he is in dire need of the schedule room for conducting textile business and hence on 4.1.2002 by notice tenancy was terminated with effect from 3.2.2002. Appellant was asked to surrender vacant possession of the shop room on expiry of the date of termination of tenancy but there was neither reply nor compliance with the demand. Appellant denied R.S.A. No.122 of 2010 -: 2 :- that he had any tenancy arrangement with the respondent. He claimed that the lease arrangement was between himself and one Hassan Beevi for rent of Rs.150/- per month which was enhanced to Rs.300/- per month. He is not aware of Ext.A1, partition deed nor had there been any attornment of tenancy in favour of the respondent. Further contention is that termination of tenancy is not valid. Trial court held that there is no dispute regarding title of respondent but he was not able to prove the tenancy pleaded by him vis-a-vis appellant and hence he is not entitled to seek eviction as if appellant is his tenant. Accordingly suit was dismissed. Respondent took up the matter in appeal. First appellate court found on evidence that there is no reason to disbelieve the case of respondent, and the appellant having failed to adduce contra evidence granted a decree in favour of the respondent. That is under challenge in this Second Appeal urging by way of substantial question of law whether in the absence of proof of rental arrangement between appellant and respondent the latter should have sought recovery of possession on the strength of title. Learned counsel for appellant would argue that first appellate court was not correct in granting a decree for eviction in favour of the R.S.A. No.122 of 2010 -: 3 :- respondent. 2. The courts below found that there was no dispute regarding title of respondent over the subject matter of the suit and found in favour of respondent based on Ext.A1. It is not disputed that appellant is a tenant of the shop room though he denied that he had any such arrangement with respondent but his arrangement was with Hassan Beevi, prior owner of the building. It is while so, that Ext.A1 was executed and respondent got title over the building. Respondent has given evidence as P.W1 that even after Ext.A1 appellant continued to be a tenant under him. He sent Ext.A2, notice stating so and terminating the tenancy. Concededly there was no reply to Ext.A2. Nor did the appellant go into the witness box to deny that he had any rental arrangement or landlord-tenant relationship with the respondent even after Ext.A1. In such circumstances I am persuaded to accept case of respondent that after Ext.A1 appellant continued to be a tenant under the respondent. That is what the first appellate court has found. 3. Though there was challenge to validity of termination of tenancy in the written statement that contention is not pursued. Tenancy was terminated with effect from 3.2.2002 and appellant R.S.A. No.122 of 2010 -: 4 :- was called upon to surrender possession thereafter. Therefore there is nothing illegal as regards the termination of tenancy. In that view of the matter I do not find any illegality in the first appellate court granting decree for eviction in favour of the respondent. No substantial question of law is involved in that regard. 4. Learned counsel requested nine months’ time to vacate the premises. It is submitted that appellant is conducting a petty tea shop in the schedule room and it will take time to find out an alternative accommodation. I must bear in mind that respondent came with dire need for vacant possession of the schedule room for conducting textile business, he having returned from abroad and settled in his native place. However, in the facts and circumstances stated I am inclined to give four months’ time to the appellant to vacate the plaint schedule room subject to conditions that appellant will deposit the entire rent arrears and continued to deposit the monthly rent at the rate of Rs.300/- in the trial court until he vacated the premises as aforesaid and filed an affidavit in the trial court within one month from this day undertaking to do as above and vacate the room on the expiry of time granted hereby without R.S.A. No.122 of 2010 -: 5 :- putting forth any claim for compensation. Resultantly, Second Appeal is dismissed in limine. However, appellant is granted four months’ time from this day to vacate the schedule room subject to the following conditions. i) Appellant shall deposit the entire arrears of rent in the trial court on or before 31.03.2010. ii) Appellant shall continue to deposit in the trial court rent/damages at the rate of Rs.300/- per month beginning from 01.04.2010 until he surrendered vacant possession of the schedule shop room or the expiry of four months granted hereby whichever is earlier. iii) The deposit referred to in clause (ii) above shall be made on or before 5th of the succeeding month. iv) Appellant shall file an affidavit in the trial court within one month from this day undertaking to comply with the above conditions and to vacate the schedule room on the expiry of four months granted hereby R.S.A. No.122 of 2010 -: 6 :- without putting forth any claim or objection whatsoever. THOMAS P.JOSEPH, JUDGE. vsv