IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 SA.No. 277 of 1997(G) --------------------- AS.72/1992 of ADDL.SUB COURT, KOCHI OS.529/1983 of PRL.M.C., KOCHI .................... APPELLANT(S): -------------- 1. LEELA MOHANDAS W/O.MOHANDAS, AGED 62 YEARS, RESIDING AT 'UPASANA', COCHIN-5. 2. AJITH KUMAR, S/O.MOHANDAS, AGED 37 YEARS, RESIDING AT 'UPASANA', CHULLIKKAL, COCHIN-5. BY ADV. SRI.V.V.SURENDRAN,P.A.NARISH RESPONDENT(S): --------------- 1. EALESWA @ KUNHAMMA, W/O.VARDU, AGED 79 YEARS, RESIDING AT CHULLIKKAL, COCHIN-5. 2. DEVASSY, S/O.VARDU, AGED 69 YEARS, RESIDING AT CHULLIKKAL, COCHIN-5. 3. PHILOMINA, AGED 59 YEARS, C/O.EALESWA, RESIDING AT CHULLIKKAL, COCHIN-5. 4. ALEXANDER, AGED 54 YEARS, C/O.EALESWA, RESIDING AT CHILLIKKAL, COCHIN-5. 5. MARY, AGED 48 YEARS, C/O.EALESWA, RESIDING AT CHULLIKAL, COCHIN-5. 6. XAVIER, AGED 52 YEARS, S/O.VARDU, RESIDING AT CHULLIKKAL, COCHIN-5. 7. BABY, AGED 42 YEARS, C/O.EALESWA, RESIDING AT CHULLIKKAL COCHIN-5. 8. IDAMMA, AGED 40 YEARS C/O.EALESWA, RESDING AT CHULLIKKAL, COCHIN-5. 9. ELSI, AGED 44 YEARS, D/O.MICHAEL, RESIDING AT CHULLIKKAL, COCHIN-5 10. KUNJU MOL, AGED 42 YEARS, D/O MICHAEL, RESIDING AT CHULLIKKAL, COCHIN-5 11. THOMMACHAN, AGED 40 YEARS, S/O.MICHAEL, RESIDING AT CHULLIKKAL, COHIN-5. 12. SALI, AGED 38 YEARS, S/O. MICHAEL RESIDING AT CHULLIKKAL, COCHIN-5 13. ROSILI, AGED 36 YEARS, D/O.MICHAEL, RESIDING AT CHULLIKKAL, COCHIN-5 14. PAPPU, AGED 34 YEARS, S/O.MICHAEL, RESIDING AT CHULLIKKAL, COCHIN-5. ADV. SRI.THOMAS ANDREWS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON 23/07/2010 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------- S.A.No.277 Of 1997 ---------------------------- Dated this the 23rd day of July, 2010. J U D G M E N T The appellants are the plaintiffs in O.S.No.529/1983 on the file of the Munsiff's Court, Kochi. The appeal is directed against the judgment and decree in A.S.No.72 of 1992 on the file of the Additional Sub Court, Kochi. The suit was filed for declaration, recovery of possession and for realisation of arrears of rent. The trial court dismissed the suit, confirmed in appeal. Hence the second appeal. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 2. The plaint A schedule is the property and plaint B schedule is a bunk situated in plaint A schedule. The 1st plaintiff is the mother and the 2nd plaintiff is her son. The 1st defendant is the wife of Vardu, who, according to the plaintiff, is the tenant of the B schedule bunk. Defendants 2 to 14 are the children of deceased Vardu. S.A.No.277 Of 1997 2 3. The case of the plaintiffs is that, the plaint A schedule belongs to the 1st plaintiff, that the 2nd plaintiff is the owner of B schedule bunk, that in the year 1976 the 2nd plaintiff purchased the bunk from his uncle's son Karthikeyan, that the bunk was let out to the 1st defendant's husband Vardu, that after his death, his widow, who is the 1st defendant, started attorning rent to the 2nd plaintiff and that rent was defaulted from 1976 onwards. Hence, the 2nd plaintiff filed Rent Control Petition No.78/1984 for eviction. The tenant disputed the title of the landlord. The Rent Control Court held that the denial of title is bonafide and that the remedy of the plaintiffs is to file civil suit as provided under the second proviso to Section 11(1) of the Rent Control Act. There was an appeal and revision against the order passed by the Rent Control Court. Subsequent to the disposal of the Rent Control Revision the plaintiffs filed the present suit for declaration of title, recovery of possession and for realising rent arrears. In the written S.A.No.277 Of 1997 3 statement filed by the defendants, they denied the title of the plaintiffs in B schedule bunk. According to the defendants, the bunk was put up by the husband of the 1st defendant with the permission of the previous owner of A schedule property. It is also contended that there is no tenancy arrangement with the plaintiffs. They prayed for dismissal of the suit. 4. Originally, the civil suit was dismissed on 27.1.1986. In the appeal, A.S.No.89/1986 preferred by the plaintiffs the lower appellate court set aside the dismissal in the suit and remitted the case for considering the issues 3 to 10 afresh. The findings of the issues, res judicata and limitation were confirmed in the remand order. 5. Plaintiffs relied on Ext.A1 title deed in support of their case that they are the title holders of the plaint A schedule property. In fact the defendants did not dispute the title of the 1st plaintiff and their only contention is that title has to be proved by the plaintiffs. DW1 when cross S.A.No.277 Of 1997 4 examined testified that plaint A schedule belongs to the 1st plaintiff. The courts below also held that the 1st plaintiff is the owner of the plaint A schedule property. 6. The dispute is with regard to the ownership of plaint B schedule bunk. According to the plaintiffs, the bunk was originally owned by Karthikeyan, who was the previous owner and the 2nd plaintiff purchased it in the year 1976. The defendants on the other hand contended that the bunk is built by Vardu, the husband of the 1st defendant, with the permission of the former landlord. 7. Even according to the defendant, the former landlord is Karthikeyan. The property is admittedly owned by the plaintiffs. Then the question is as to whether the contention of the defendants that the bunk is owned by Vardu, the husband of the 1st defendant and as to whether he had put up the bunk with the permission of the previous owner. Unless the ownership of the bunk is proved by the defendants as contended by them, the plaintiffs are entitled S.A.No.277 Of 1997 5 to the reliefs claimed in the suit, since they are the owners of the property. The trial court did not accept the contention of the 2nd plaintiff that the bunk was purchased by him from Karthikeyan and therefore, the court held that the plaintiffs are not the owners of the bunk. The trial court did not enter a finding as to whether the case of the defendants that deceased Vardu had built the bunk with the permission of the previous owner Karthikeyan is true or not. 8. The B schedule is a bunk, whether it is permanent or temporary. Admittedly, the bunk is situated in the property which belonged to the plaintiffs. It has come out in evidence that plaint B schedule bunk is a movable item. The plaintiffs also produced Ext.A3 and A3(a) property tax receipts. Ext.A4 copy of the tax assessment register and Ext.A5 revenue receipts were issued in favour of the second plaintiff. The plaintiffs adduced evidence to show that the bunk was purchased by the 2nd plaintiff. The testimony of PWs1 to 3 supports the claim. In fact, there is no definite S.A.No.277 Of 1997 6 finding entered by the trial court as to who is the owner of the bunk. Without entering a finding as to the ownership of the bunk, the trial court proceeded and held that it is difficult to hold that there is landlord-tenant relationship between the 2nd plaintiff and the defendants or that there is such relationship between Karthikeyan and deceased Vardu. The trial court, in fact, did not enter a positive finding regarding the landlord tenant relationship also. At the same time, the trial court held that it is difficult to hold that there is landlord-tenant relationship. 9. On going through the pleadings in the case, in fact there is no dispute as to the title of the plaint A schedule property. The parties disputed the ownership of plaint B schedule bunk. Yet the trial court held that the plaintiffs are not entitled to the declaration of title as prayed for. The trial court dismissed the suit without appreciating the facts in the right perspective. What exactly is the case of the parties and as to whether the ownership of the bunk is S.A.No.277 Of 1997 7 proved are all questions relevant for consideration in the suit. 10. The lower appellate court also failed to appreciate the facts and contentions of the parties correctly. In fact the appellate Court misunderstood the scope of the suit. The suit itself was filed after prolonged litigation in the Rent Control Court, Appellate Forum and Revisional Court. The suit was filed on the basis of the order passed by the Rent Control Court directing the plaintiffs to approach the civil court for the reliefs. The plaintiffs filed the suit for declaration of title and recovery of possession. The recovery of possession was prayed for on the ground of arrears of rent. But the lower appellate court held that the plaintiffs filed the suit without seeking eviction on any one of the grounds under the Rent Control Act. The learned judge held that the prayer in the plaint is for a decree for recovery of possession on the strength of title. The learned judge did not appreciate the fact that the suit was filed S.A.No.277 Of 1997 8 under Section 11(1) of the Rent Control Act for declaration of title and for recovery of possession on the ground of arrears of rent. The ground is that the defendants defaulted rent and that the rent is in arrears. The lower appellate court held that a sale of tangible immovable property value above Rs.100/- can be conveyed only by a registered instrument. The findings were rendered by referring to the sale of plaint B schedule bunk. If the plaint B schedule bunk is a movable one, I do not think that, the said finding is correct. Therefore, the finding of the Lower Appellate Court that the sale in favour of the plaintiffs is not valid for want of registered document, is unsustainable. 11. The learned counsel for the appellants submitted that the plaintiffs are the owners of only a small strip of land which is left after acquisition of other portions of land and that there are 3 or 4 bunks in the strip of land and that all occupants of the bunks are attorning rent to the plaintiffs and that all the bunks belongs to the plaintiffs. S.A.No.277 Of 1997 9 12. In the light of the detailed discussion made above, I am of the view that the findings entered by the trial court as well as the appellate court are unsustainable in law and facts. In the circumstances, this court is of the view that the matter requires re-consideration. On reconsideration if the courts below finds that the bunk belongs to the defendants, the courts below can mould reliefs and can permit the defendants to remove the bunk. In the result, appeal is allowed. The judgment and decree passed by the courts below are set aside. The trial court is directed to hear and dispose of the suit afresh in accordance with law in the light of the observations made above. The courts below shall dispose of the case as early as possible, at any rate within a period of six months from the date of receipt of a copy of this judgment. No order as to costs. HARUN-UL-RASHID, Judge. pm