IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 AS.No. 713 of 1995() -------------------- OS.472/1992 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/DEFENDANT -------------- M.M.SULTHAN, S/O.MALANGA ROWTHER, AGED 43 YEARS, M.A.S.INDUSTRIES, KANNARA THERMON, KOPPAM AMSOM, PALAKKAD. BY ADV. ANIL THOMAS SRI.JOSE ABRAHAM SRI.SIJU P.KURIAKOSE RESPONDENT/PLAINTIFF: --------------- RASIA SULTHANA, W/O.YUSUF AGED 43 YEARS, RESIDING AT HOUSE NO.11/317, KANNARA THERMON AMSOM PALAKKAD ADV. SRI.M.P.R.NAIR SRI.DEVAN RAMACHANDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP .NO.310/99 & 5188/95 IN AS 713/95 DISMISSED 18/2/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO. 713 OF 1995 ------------------------------------------ Dated 18th February 2009 JUDGMENT Defendant in O.S.472/1992 on the file of Sub court, Palakkad is the appellant. Plaintiff is the respondent. Suit is for recovery of possession of plaint schedule property on the strength of title. Respondent is claiming title to plaint schedule property under Ext.A1 partition deed dated 31/5/1986 contending that plaint schedule property is part of the property allotted to her as A schedule property therein. Contending that on 31/5/1986 the properties belonging to respondent and her brother were divided under Ext.A1 and since then she has title to the property and appellant trespassed into the property on 8/12/1987 and he has no right to continue in possession of the property, recovery of possession with damages at rate of Rs.100/- per month was sought for. Appellant resisted the suit contending that he is a tenant of the building having obtained the property from Basheer Khan, father of the respondent SA 713/95 2 as early as in 1980 and since then he has been paying rent to Basheer Khan and has been in possession of the property as a building tenant and is liable to pay a monthly rent of Rs.100/- and as he is a building tenant respondent is not entitled to institute a suit for recovery of possession before the civil court. It was contended that case of trespass was built up to circumvent the provisions of Kerala Building (Lease and Rent Control) Act. 2. Learned Sub Judge framed necessary issues. On the side of respondent her husband was examined as PW1. Appellant was examined as DW1. Exts.A1 to A11 and B1 to B8 were marked on the respective sides. Learned Sub Judge on the evidence found that respondent has title to the property. It was also found that appellant is not a building tenant and respondent is entitled to recover possession of the property on the strength of title. It was also found that appellant is liable to pay damages at the rate of Rs.100/- per month from 8/10/1992 onwards, the date of institution of the suit. The decree is challenged in this appeal. 3. Learned counsel appearing for appellant and respondent were heard. SA 713/95 3 4. The only point for consideration is whether appellant is a building tenant entitled to the provisions of Kerala Building (Lease and Rent Control) Act and if so, whether a suit for recovery of possession is maintainable. 5. Argument of learned counsel is that learned Sub Judge did not properly appreciate the evidence and evidence establish that appellant did not trespass into the building in 1987 as claimed and instead has been in possession of the building from 1980 onwards and he has been in possession of the building not as a trespasser but as a building tenant. Learned counsel also argued that Exts.B5 and B6 note books containing acknowledgment of rent by Basheer Khan, father of respondent establish that appellant has been in possession of the building from 1980 onwards and he is not a trespasser. Learned counsel also argued that evidence of PW1 establishes that he has knowledge of events occurred subsequent to Ext.A1 partition deed alone and not about earlier events and the entire properties were being managed by the father Basheer Khan and it was Basheer Khan who was collecting rent and therefore learned Sub Judge should have found that SA 713/95 4 appellant is a building tenant and suit instituted on the allegation that he is a trespasser is only to circumvent the provisions of Kerala Building (Lease and Rent Control) Act. Learned counsel further argued that fact that in 1980 brother of respondent admittedly instituted a suit for injunction alleging that appellant is attempting to trespass into the plaint schedule property which was dismissed establishes that appellant has been in possession of the property from 1980 onwards and case of trespass in 1987 is created for the purpose of institution of the suit and in such circumstances, it is to be found that appellant could be evicted only by recourse to Kerala Act 2 of 1965. 6. Learned counsel appearing for respondent argued that when title of the respondent is proved by Ext.A1, unless appellant has a better title or he is protected by some enactment, respondent is entitled to the decree sought for. It was argued that as rightly found by the court below there is no evidence to prove that appellant is a building tenant or there was a lease in favour of the appellant and in such circumstances there is no reason to interfere with the findings of the trial court. It was pointed out that SA 713/95 5 though Exts.B5 and B6 were pressed into service, they were not proved and therefore no reliance could be placed on Exts.B5 and B6 and when title of respondent is proved and there is no case that the title is barred by adverse possession and as appellant is not entitled to protection under any enactment the decree is only to be upheld. 7. Appellant is not disputing title of respondent as such. What was contended was that the building property belonged to Basheer Khan and from Basheer Khan appellant obtained a lease. Ext.A1 establishes that the property originally belonged to respondent and her brother. Under Ext.A1 in 1986 the joint properties were divided. A schedule property therein was allotted to the respondent. Plaint schedule property is part of the A schedule property. Therefore, finding of learned Sub Judge that respondent has title to the plaint schedule property is perfectly correct and cannot be challenged. 8. When the suit is for recovery of possession on the strength of title, unless the appellant has a better title or has a case that title of the respondent has been lost by adverse possession or SA 713/95 6 that appellant is protected by any enactment a claim for recovery of possession cannot be resisted. The only contention raised in the written statement was that he is entitled to protection of Kerala Building (Lease and Rent Control) Act as he is a building tenant. Though lease as such was not specifically pleaded, case in the written statement is that appellant has been in possession of the building as a tenant as early as 1980 and rent was being collected from him by Basheer Khan, the father of respondent up to 22/9/1990. Even in the written statement neither the details of the commencement of the lease nor the terms of tenancy was pleaded. Even what was the agreed rent at the time of lease was not specifically pleaded. In paragraph 6 of the written statement it was contended that the building itself was constructed by the appellants at his cost and he was paying a rental of Rs.100/- per month. If this case is true, appellant cannot claim to be a tenant of the building. He could at best be a tenant of the land which was granted on lease where he constructed the building. But this case in paragraph 6 of the written statement was not pressed at the time of evidence. What was contended by the appellant when SA 713/95 7 examined as DW1 was that he obtained the building on rent from Basheer Khan. When the very lease was disputed by the respondent it is for the appellant to establish the lease. Question is whether there is any acceptable evidence even to probablise the case of lease set up by the appellant. 9. Though Exts.B5 and B6 were relied upon by the learned counsel, to argue that there was a lease, as rightly pointed out by the learned counsel appearing for the respondent Exts.B5 and B6 cannot be looked into as they were not proved. It is the very case of the respondent that there was no lease arrangement. There is no admission that Basheer Khan had received rent from the appellant and had acknowledged the receipt of rent in note books. Even when PW1 was examined, no suggestion was put to him on that case. Exts.B5 and B6 were also not shown to PW1 and PW1 was not asked whether the signatures seen in Exts.B5 and B6 are not that of Basheer Khan. Exts.B5 and B6 were marked when the appellant was examined as DW1. Evidence of DW1 is only that Basheer Khan was managing the properties of his minor children and for storing the articles for the cycle business he obtained the building on a monthly SA 713/95 8 rent of Rs.100/- and for payment of rent acknowledgment used to be obtained in note books. Marking was seen objected also. Thereafter Exts.B5 and B6 were seen marked. There is no case for DW1 either in chief examination or in cross examination that Basheer Khan signed in Exts.B5 and B6 in his presence after writing them. Therefore, though Exts.B5 and B6 were produced, entries therein were not proved. Therefore, no reliance could be placed on Exts.B5 and B6 to establish the lease. Even if, Ext.B5 is to be relied on to find out the transaction, what is stated in Ext.B5 is that pursuant to a document executed on 21/3/1980 a shed was constructed and Rs.100/- was received. If that be the case, subject matter of Exts.B5 and B6 could only be the building covered by the document dated 21/3/1980. Appellant has no case that this building was constructed or obtained on lease, pursuant to any written agreement. Therefore, even if Exts.B5 and B6 are to be relied on, they cannot relate to this property. Therefore, there is no evidence to prove the lease. Even if it is taken that appellant did not trespass into the property in 1987 and has been in possession of the property since 1980 as claimed by him, that will not enable him SA 713/95 9 to continue his unauthorised possession. Respondent is entitled to the recovery of possession granted on the strength of her title. In such circumstances, I find no reason to interfere with the decree granted by the court below. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 713/95 10 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT A.S.713 OF 1995 18th February 2009 ============================