IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 SA.No. 822 of 2002(F) AS.78/2002 of PRINCIPAL SUB COURT, KOTTAYAM OS.186/1998 of MUNSIFF'S COURT, CHANGANACHERRY APPELLANT: APPELLANT/PLAINTIFF ------------------------------ P.R.SASI, S/O.P.K.RAGHAVAN, PICHANATTUKALAM HOUSE, VAKATHANAM KARA, VAKATHANAM VILLAGE, CHANGANACHERRY TALUK. BY ADV. SRI.JOHN VARGHESE SRI.T.SAJI RESPONDENT: RESPONDENT/DEFENDANT --------------------------------- P.R.SUJA, W/O.AJI, VALASSERIL HOUSE, KUMARAKAM KARA, KUMARAKAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.M.S.RADHAKRISHNAN NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P.NO.2467/2002 IN S.A.NO.822/2002 DISMISSED 25/3/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- S.A. NO. 822 OF 2002 F -------------------------------------------- Dated this the 25th March, 2008 JUDGMENT The appellant instituted O.S.No.186 of 1998 on the file of the Court of the Munsiff of Changanacherry, against the respondent for a permanent prohibitory injunction restraining the respondent from forcibly evicting the appellant/plaintiff from the plaint schedule property. Respondent filed counter claim for eviction of the appellant from the property. The trial court dismissed the suit for injunction, but granted the relief of eviction as prayed for in the counter claim. On appeal by the plaintiff, the Lower Appellate Court confirmed the judgment and decree of the trial court. 2. The plaintiff is the brother of the defendant. The plaint schedule property has an extent of 2.5 cents. The property belonged to the grandfather of the plaintiff. On his death, it devolved on the father of the plaintiff. It is admitted in the plaint that father of the plaintiff gifted the property to the defendant in 1995. The marriage of the defendant took place in 1995. The case of the plaintiff is that he got married on 10.9.1986 and his father-in-law provided him with a sum of Rs.50,000/-. This amount was handed over to the father of the plaintiff and he permitted the plaintiff to construct a shed in the property for the purpose of M.F.A. NO.822 OF 2002 :: 2 :: running an automobile workshop. The workshop was opened on 1.3.1992. The plaintiff obtained loan from the Bank and the workshop was registered as a small scale industrial unit. The suit was filed on 4.4.1998, after receipt of Ext.A3 notice dated 18.3.1998 issued by the defendant directing the plaintiff to vacate the premises. 3. The defendant contended in the written statement that no amount was paid by the plaintiff to his father and that the case put forward by the plaintiff is not true. The plaintiff's father allowed him to conduct an automobile workshop and it was agreed that the plaintiff would surrender at the time of marriage of the defendant. The plaintiff is a licencee in respect of the plaint schedule shop. The gift deed was executed by the father in favour of the defendant in the year 1995 as per the registered document No.1759 of 1995, Sub Registrar's Office, Thengana, at the time when the marriage of the defendant took place. Though a request was made to the plaintiff to surrender the premises, he failed to do so. Accordingly, Ext.A3 notice was sent. The defendant stated that she has no intention to evict the plaintiff forcibly. A counter claim was made for granting a decree for eviction of the plaintiff from the plaint schedule property. 4. The plaintiff filed a replication. In the replication he stated that M.F.A. NO.822 OF 2002 :: 3 :: the gift deed under which the defendant claims title was procured by her by fraudulent means. It was also contended that the plaintiff is a tenant and he was liable to pay rent to his father. The relief prayed for in the counter claim was disputed by the plaintiff. 5. Before the trial court, the plaintiff was examined as PW1 and defendant was examined as DW1. Exts.A1 to A3 were marked on the side of the plaintiff. On an appreciation of the oral and documentary evidence in the case, the trial court came to the following conclusions: a) It is admitted by the plaintiff that the defendant did not make any attempt to evict the plaintiff forcibly. b) The plaintiff has admitted in the plaint that a gift deed was executed by the father in favour of the defendant in respect of the suit property. c) The defendant acquired right, title and interest over the plaint schedule property. d) The plaintiff is only a licencee and he is liable to be evicted in accordance with law. e) Ext.A3 notice dated 18.3.1998 was issued by the defendant terminating the licence. M.F.A. NO.822 OF 2002 :: 4 :: f) There is no evidence to show that the plaintiff is a tenant and that he had paid rent to his father. g) There is no evidence to show that a sum of Rs.50,000/- was paid by the plaintiff to his father for being permitted to occupy the premises. h) The plaintiff's father is alive. But, he was not examined as a witness. i) No evidence was adduced to show that Rs.50,000/- was paid to the plaintiff by his father-in-law and that the said amount was paid to the plaintiff's father. j) The plaintiff has put forward inconsistent cases in the plaint as well as in the replication. k) The plaintiff being a permissive occupier, is liable to be evicted by issuing a notice of termination of the licence. 6. On the above findings, the trial court came to the conclusion that the plaintiff is not entitled to the relief of injunction and that the defendant is entitled to succeed in the counter claim. A decree was passed accordingly. 7. On appeal by the plaintiff, the Appellate Court considered the oral and documentary evidence in detail and concurred with the view M.F.A. NO.822 OF 2002 :: 5 :: taken by the trial court. The Appellate Court has also arrived at the same conclusion as taken by the trial court, on the facts of the case. 8. The findings arrived at by the courts below are findings of fact. No substantial question of law is involved in the Second Appeal. The points raised in the Second Appeal were not taken before the Lower Appellate Court by the appellant/plaintiff. Contentions which are now taken in the Second Appeal cannot be permitted to be taken for the first time. 9. The Second Appeal lacks merits and it is accordingly dismissed. The plaintiff is running an automobile workshop in the property since 1992. It is stated that he has employed workmen in the workshop. Taking into account the facts and circumstances of the case, I am of the view that three months' time can be granted to the plaintiff to vacate the premises. Execution of the decree shall be kept in abeyance for a period of three months. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- S.A.NO. 822 OF 2002 F JUDGMENT 25th March, 2008 -------------------------------------------