IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 SA.No. 361 of 1999(B) ------------------------------- AS.137/1996 of D.C. & SESSIONS COURT, ERNAKULAM OS.511/1994 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT(S): ---------------------- RUBI LEATHER & FOOTWEAR, BUILDING NO.XXXVII/386, BROADWAY, ERNAKULAM REPRESENTED BY ITS PROPRIETOR. BY ADVS. SRI.S.SREEKUMAR SRI.M.A.FAROOQUE MARICKAR RESPONDENT(S): -------------------------- 1. P.M.ROSY, D/O.MARSILY, AGED 43, PALLIPARAMBIL, KUSUMAGIRI.P.O., KAKKANAD. 2. P.S.BABY @ BABU ISSAC, S/O. P.M.ROSY, AGED 23, PALLIPARAMBIL, KUSUMAGIRI.P.O., KAKKANAD. * ADDL.R3 IMPLEADED * ADDL.R3: ISSAC ELIAS SEBI, S/O.ISSAC, AGED 61, RESIDING AT 12 B YEHIAM STREET, KARMIEL, STATE OF ISRAIL. IMPLEADED AS PER ORDER DATED 23/7/2010 IN I.A.NO.1811/2010. R1 & R2 BY ADV. SRI.SIBY MATHEW SRI.B.PREMNATH (E) ADDL.R3 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.361/1999 ORDER ON CMP.NO.994/1999 AND I.A.NO.550/2005 IN S.A.NO.361/1999 DISMISSED 15/12/2010 SD/- P.S.GOPINATHAN, JUDGE /TRUE COPY/ P.S.TO.JUDGE sts P.S. GOPINATHAN, J. = = = = = = = = = = = S.A. NO. 361 OF 1999 = = = = = = = = = = = = = DATED THIS, THE 15TH DAY OF DECEMBER, 2010. J U D G M E N T The appellant is the defendant in O.S. 511 of 1994 on the file of the Subordinate Judge's Court, Ernakulam. Respondents 1 and 2, who are the plaintiffs, contended that building bearing No. XXXVII/386 (old) of Corporation of Cochin belonged to their predecessor and it devolved upon them. The appellant herein is a tenant with liability to pay monthly rent at the rate of Rs. 370/- and that the rent up to 15.6.1991 was paid and thereafter it was defaulted till 15.6.1994. With these pleadings, they sought for a decree for realisation of Rs. 13,320/- with interest at the rate of 18% per annum. 2. The appellant contended that he is not a tenant under respondents 1 and 2 and that he is a tenant under Sebi Elias who is now impleaded as additional third respondent in the second appeal and that the rate of rent was Rs. 550/- and as directed by the third respondent herein, he had been depositing the rent in State Bank of India, M.G. Road Branch, the Manager of which was examined as PW.2 and there is no landlord - tenant S.A. 361/1999 2 relationship between the appellant and respondents 1 and 2 and that the appellant is not liable to pay respondents 1 and 2 any amount towards rent. 3. The trial court raised necessary issues and the parties were sent for trial. On the side of respondents 1 and 2, PWs 1 to 3 were examined and Exts.A1 to A6 were marked. The appellant was examined as DW.1. Ext.X1 to X4 were marked through PW.2. During the course of the evidence, respondents 1 and 2 had developed a case that by virtue of Ext.A1 there is an agreement to exchange the properties between respondents 1 and 2 on one side and the third respondent on the other side and by virtue of Ext.A1, the respondents 1 and 2 had got title over the building which the appellant is occupying as a tenant. Ext.A1 document was rejected by the courts below concurrently on finding that the said document was not at all registered and hence it is not reliable to come to a conclusion regarding the title of the respondents 1 and 2 over the building which the appellant was occupying as tenant. However, the trial judge found that since there is a direction to PW.2 to transfer at the rate of Rs. 370/- per month to the account of the first respondent, copy of which is marked as Ext.X1, the respondents 1 and 2 are entitled to a decree as claimed in the plaint. Accordingly, the suit was decreed. 4. In appeal, the learned District Judge, arrived at a finding that the S.A. 361/1999 3 first respondent is the wife of the third respondent and the second respondent is the son born to the first respondent in third respondent. To conclude so, the learned District Judge had given reliance to Ext.A5 letter. In fact, there is no pleadings to that effect. Now the learned counsel for respondents 1 and 2 fairly conceded that there is no pleading at all that the first respondent is the wife of the third respondent or the second respondent is the son of the first respondent born through the third respondent. Learned counsel submitted that the third respondent had not at all married the first respondent and the first respondent was engaged as a maid servant to look after the mother of the third respondent and he had gone to Australia and to make the payment, the third respondent had made arrangements with the Bank to transfer Rs. 370/- from Ext.X2 account maintained in the name of the 3rd respondent to Ext.X1 account maintained in the name of the first respondent. The evidence of PW.2, the Manager of the Bank would fully support the defence set up by the third respondent as well as the appellant. Though respondents 1 and 2 had got a case that the land where the building which was let out to the appellant was situated belonging to the predecessor of respondents 1 and 2 and it was let out to the appellant by the predecessor, there is no supporting evidence at all. So, the very case of the respondents 1 and 2 as landlords of the building in which the appellant is occupying as a S.A. 361/1999 4 tenant collapses. The evidence of PW.2 itself would belie the claim of respondents 1 and 2. Respondents 1 and 2 cannot escape from the evidence of PW.2 as he was brought at the instance of respondents 1 and 2 themselves. Even if it is assumed that the third respondent had entrusted the Bank to transfer Rs.370/- from Ext.X2 account to Ext.X1 account maintained by the first respondent, that would not entitle respondents 1 and 2 to claim any amount as rent from the appellant. The so called arrangement made by the third respondent with the Bank would not create any liability on the side of the appellant to pay the rent to respondents 1 and 2. On going by the judgments of the courts below and evidence on record and after hearing the arguments on either side, I find that the decree and judgment under challenge is contrary to the pleadings and evidence. In that sense, it is perverse and not at all sustainable. Respondents 1 and 2 totally failed to establish any landlord-tenant relationship between themselves on one side and the appellant on the other side. There is no privity of contract at all between the appellant and respondents 1 and 2 regarding any payment. The evidence on record would show that the appellant had succeeded to establish the right of the 3rd respondent over the building in which the appellant is residing as a tenant. He is not liable to pay any rent to respondents 1 and 2. The liability of the appellant is to S.A. 361/1999 5 pay rent to the 3rd respondent to whom the building belongs or to deposit the rent in the account of the 3rd respondent. The decree and judgment under challenge, being contrary to the pleadings and evidence, are liable to be set aside. In the result, the appeal is allowed and the decree and judgment under challenge are set aside. The parties are directed to suffer their respective costs. The Bank guarantee furnished by the appellant shall stand discharged. P.S. GOPINATHAN, (JUDGE) Knc/- S.A. 361/1999 6 P.S. GOPINATHAN, J. = = = = = = = = = = = S.A. NO. 361 OF 1999 = = = = = = = = = = = = = DATED : 15TH DECEMBER, 2010. J U D G M E N T