IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 AS.No. 68 of 1996(A) --------------------------------- OS.231/1993 of SUB COURT,KATTAPPANA .................... APPELLANT(S): (DEFENDANTS 3 & 4 BEFORE THE LOWER COURT) ----------------------- 1. C.S.PRATHAP, AGED 45, CHAKKALAYIL HOUSE, VANDIPERIYAR KARA, PERIYAR VILLAGE, IDUKKI DISTRICT. 2. RAJAMMA PRATHAP, AGED 34, HOUSEWIFE, W/O. C.S PRATHAP, CHAKKALAYIL HOUSE, VANDIPERIYAR P.O., VANDIPERIYAR KARA, PERIYAR VILLAGE, IDUKKI DISTRICT. BY ADV. MR.JACOB SEBASTIAN RESPONDENT(S): PLAINTIFF 1 TO 8 AND DEFENDANTS 1,2,5,6,7 BEFORE THE ----------------------------- LOWER COURT. 1. MEERAUMAL, W/O. K.P.SAID MOHAMMED RAWTHER, HOUSE WIFE, AGED 76, PATHUPARAMBIL, PUZHAVATHU KARA, CHANGANACHERRY VILLAGE. 2 P.S.ABDUL SALAM, ADVOCATE, AGED 57 YEARS, PATHUPARAMBIL, PUZHAVATHU KARA, CHANGANACHERRY VILLAGE. 3. P.S.ABDUL MAJEETHU, PLANTER, AGED 53 YEARS, PATHUPARAMBIL, PUZHAVATHU KARA, CHANGANACHERRY VILLAGE. 4. P.S.MOHAMMED BASHEER, VYAVASAYAM AGED 50, DO. DO. REP.BY POWER OF ATTORNEY HOLDER P.S.MUHAMMEDALI JINNAH. 5. P.S.MUHAMMEDALI JINNAH, PLANTER, AGED 43 YEARS, DO. DO. A.S. NO.68/1996 6. BULKEES, HOUSE WIFE, AGED 48 YEARS, DO. DO. 7. AYSHA BEEVI, AGED 46 YEARS, HOUSE WIFE DO. DO. 8. NABEESA BEEVI, AGED 41, HOUSEWIFE, DO. DO. 9. K.P.KURIAN, AGED 80 YEARS, KUNNAMKARAPUTHENPURAYIL, KUZHIMATTOM KARA, PANACHIKADU VILLAGE. 10. BOBY KURIAN, DOCTOR, AGED 50, DO. DO. 11. JAYAPRAKASH, AGED 43 YEARS, BUSINESS, DO. DO. 12. M.KAMARUDEEN,A GED 53 YEARS, CONDUCTING TRICHI CLOTH CENTRE, VANDIPERIYAR KARA, PERIYAR VILLAGE. 13. S.THANGAL KUNJU, CONDUCTING SADARUDEEN STORE AND COOL BAR, VANDIPERIYAR KARA, PERIYAR VILLAGE. BY ADV. MR .T.I.ABDUL SALAM FOR R1 TO 8 MR.A.K.AVIRAH MR. G.P.SHINOD FOR R11 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. SURENDRA MOHAN, J ------------------------------------------------------------ A.S. NO: 68 OF 1996 ----------------------------------------------------------- Dated this the 14th July, 2009. JUDGMENT The appellants challenge the judgment and decree dated 30.6.1995 in O.S.231/93 of the Sub Court, Kattappana. The appellants are the third and fourth defendants in the said suit. Respondents 1 to 8 are the plaintiffs in the suit while respondents 9 to 13 are defendants 1, 2 & 5 to 7 in the suit. The suit was filed for a declaration of title and for recovery of possession of the plaint schedule property, with mesne profits. 2. The suit was originally filed as O.S.460/91 before the Sub Court, Thodupuzha. Later on, the suit was transferred to the Sub Court, Kattappana and renumbered as O.S.231/93. The suit was filed by respondents 1 to 8 who are the plaintiffs, on the following allegations. The plaint schedule property and a commercial building situate therein bearing door No: 5/336, originally belonged to Harippadu Madathil Saraswathy Ammal. She gave the said property along with other properties to her son Sreenivasa Iyar. As per a registered lease deed No: 205/1958, the plaint schedule building was taken on lease by the 9th respondent/first defendant from the said Saraswathy Ammal for a period of three years. AS 68/96 2 Thereafter he was conducting a departmental store in the building in the name and style 'Travancore Trades'. The 10th respondent/second defendant was assisting him in the business. Subsequently late P.K.Saidu Mohammadu Rawther purchased the the plaint schedule building and other rooms as per registered sale deed No: 541/1967 of Peermade Sub Registry (Ext.A1). The property was purchased for valid consideration and thus, he acquired absolute title in respect of the property. Respondents 1 to 8/plaintiffs are the legal heirs of late P.K.Saidu Mohammadu Rawther, on whom his rights in respect of the plaint schedule property have devolved on his death. The 9th respondent/first defendant was conducting the departmental store till 31.1.1990. Thereafter, the business was stopped. On 4.2.1990 defendants 1 and 2 surrendered possession of the building to the second plaintiff for and on behalf of the other plaintiffs also and thus, the plaintiffs got possession of the property. 3. Thereafter, on the request of defendants 1 and 2, the plaintiffs allowed them to keep their articles in the schedule room for a period of six months without paying any rent. But, the defendants did not remove their articles from the schedule room. The appellant/third defendant was a clerk in the departmental store AS 68/96 3 and defendants 1 and 2 were paying his salary and other benefits. Under cover of the permission granted by the plaintiffs, defendants 3 to 5 trespassed upon the schedule property with the help of defendants 1 and 2. The western room in the schedule property which was set apart by the plaintiffs for the use of the 6th defendant was reduced by the third defendant to his possession. In spite of repeated demands, the defendants did not surrender the room by removing their articles. Therefore, the plaintiffs sought for a declaration of their title and recovery of possession of the property on the strength of their title. They also claimed future mesne profits at the rate of Rs.250/- per month from 4.2.1990 as well as past mesne profits. When the second plaintiff demanded vacant possession of the premises, the third defendant filed O.S.280/90 before the Munsiff's Court, Idukki and obtained an order of injunction against forcible dispossession. 5. The first defendant did not file written statement. Defendant Nos: 2 to 4 and 7 remained ex parte. The suit was resisted only by the third defendant who filed written statement and contested the suit. 6. According to the third defendant, the plaint schedule description was false and imaginary. The plaint schedule property AS 68/96 4 is not comprised in Survey No:53/5A, nor is it included in the sale deed No: 541/67. The suit is bad for misjoinder of parties. The third defendant is not aware of the interest of plaintiffs 1 and 3 to 8 in the plaint schedule property. They have no interest in the property and, therefore, they are unnecessary parties to the suit. Defendants 6 and 7 are also unnecessary parties as they have no possession over any portion of the property. It has been admitted by the third defendant that the building was taken on lease by the first defendant as per lease deed No: 205/58 but, the lease deed was taken in his capacity as the Managing Partner of Messrs. Travancore Trades. The land lord Saraswathy Ammal was issuing receipts for payment of the rent of Rs.114.25 in the name of the firm. The third defendant contended that he was a working partner of Messrs. Travancore Trades along with the first defendant and he had been running the entire business of Messrs. Travancore Trades in Peermade Taluk. The allegation that the first defendant was being helped by the second defendant in his business was denied for the reason that the second defendant was a Surgeon working at Chengannur, who had no time to attend to the business. Apart from the third defendant, the second defendant, fifth defendant and two other sons of the first defendant, viz., John and Philip were AS 68/96 5 also partners of Messrs. Travancore Trades. Messrs. Travancore Trades was running a number of other businesses also in the building, in addition to the departmental store. It had an agency of Malayala Manorama, Parcel Booking Agency of Southern Road Ways and Tyre Supply and Retrading of Sundaram Industries Ltd. All the businesses of the firm were being conducted from the plaint schedule building. The parcel booking agency and Malayala Manorama agency were taken in the name of the first defendant and the tyre supply and retrading business was in the name of the third defendant. 7. According to the third defendant by January 1990 the partners of Messrs. Travancore Trades decided to discontinue their joint venture and the departmental store was stopped. Since none of the partners wanted to take over the parcel booking agency, Malayala Manorama Agency and the Tyre Supply and Retrading agency, the partners relinquished their lease hold rights in the plaint schedule property in favour of the third defendant. The first floor of the building was vacated and the second plaintiff was put in possession of the same. The ground floor and the apurtenant land continued in possession of the third defendant. The allegation that on 4.2.1990, defendants 1 and 2 gave vacant possession of the AS 68/96 6 entire building to the second plaintiff was denied. Defendants 1 and 2 have no right to give vacant possession of the premises since it was in the possession of the firm. The plaint allegation that the second plaintiff allowed defendants 1 and 2 to use the ground floor of the building for six months without paying rent was also disputed. According to the third defendant he had been living in a portion of the ground floor from 1974 onwards with his family and he was continuing in possession of the ground floor and the court yard as lessee. Since the second plaintiff never obtained vacant possession of the property, he was a tenant in respect of the plaint schedule property. The allegation that he was a clerk in the department store was denied. 8. According to the third defendant, the plaint schedule property is situate in Vandiperiyar Panchayat to which the provisions of the Kerala Building (Lease and Rent Control) Act, 1965 was applicable. Therefore, the third defendant was not liable to be evicted except in accordance with the provisions of the said Act. The plaintiffs have no title to the plaint schedule property. Therefore, they are not entitled to recover any amount as mesne profits. Though he had offered to pay rent to the second plaintiff, the same was refused to be accepted by him. When the second AS 68/96 7 plaintiff with the help of defendants 6 and 7 tried to evict the third defendant forcibly, he had to file a suit before the Munsiff's Court, Idukki. The second plaintiff remained ex parte in the said suit. There is no cause of action for filing the present suit. The suit is false, frivolous and vexatious and, therefore, the same is liable to the dismissed with compensatory cost of Rs.2,000/-, it was contended. 9. The suit was tried by the court below on the above pleadings, after framing 9 issues: 1) Whether the suit is maintainable? 2) Whether the suit is bad for misjoinder of parties? 3) Whether the lease deed No.205/58 was issued in favour of the Ist defendant or it was in the name of 'Travancore Trades'? 4) Whether the defendants 1 and 2 have surrendered the possession of the building to the plaintiffs on 4.2.1990 and whether the defendants 1 and 2 were allowed to use the building without paying rent for a period of 6 months as alleged? 5) Whether the plaintiffs are entitled to a decree of declaration and recovery of possession? 6) Whether the plaintiffs are entitled to realise a sum of Rs.2,875/- towards the past mesne profit from the defendants? 7) Whether the plaintiffs are entitled to AS 68/96 8 get any future mesne profits, and if so, what is the amount? 8) Whether the third defendant is entitled to get compensatory costs? 10. The evidence in the case consists of the oral testimonies of PW1 and DW1 and Exts.A1 to A14 and B1 to B14 documents. 11. On an elaborate consideration of the evidence on record as well as the contentions of the rival parties, the court below came to the conclusion that the plaintiffs had succeeded in proving their case and therefore, a decree has been granted in terms of the plaint claim. The said judgment and decree are under challenge in the above appeal. 12. According to the counsel for the appellants, the court below seriously went wrong in accepting the case of the plaintiffs. According to him, the third defendant had seriously disputed the identity of the plaint schedule property and even the survey number thereof was disputed by him. Therefore, the court below went wrong in granting a decree for recovery of possession without first identifying the plaint schedule property. Though the plaintiffs could have easily identified the property by a survey measurement thereof, AS 68/96 9 since such a course was not adopted, the plaintiffs are not entitled to a decree for recovery of possession. It is further contended that the case of the plaintiffs regarding surrender of the plaint schedule property to the second plaintiff on 4.2.1990 is false and there is no evidence available of any such surrender. According to the counsel for the appellant, the third defendant is a tenant of the plaint schedule premises in his capacity as a partner of 'M/s Travancore Trades'. Therefore, the suit itself was not maintainable and he could be evicted only in accordance with the provisions of the Kerala Building (Lease and Rent Control) Act, 1965. 13. The contentions of the learned counsel for the appellant are met by the counsel for the respondents by pointing that the rent deed Ext.A5 would show that the same was executed by the 6th defendant in his personal capacity and not on behalf of any partnership firm. Further, it is pointed out that no evidence or material has been produced to show that there was a partnership in existence under the name and style 'Travancore Trades'. There is no record available to show that the third defendant was a partner of any such firm. On the contrary, the evidence on record shows that the third defendant was only an employee of the first AS 68/96 10 defendant. It is contended that, since the third defendant does not claim any right in respect of the plaint schedule property, it is not open to him to question the identity of the property or the title of the plaintiffs. 14. I have been taken through the evidence in the case, both oral and documentary. I have also heard the counsel for the contesting parties in detail. 15. The question that arises for consideration is:- Whether the court below was right in decreeing the suit and allowing recovery of possession of the plaint schedule property and building? 16. It is an admitted fact that the plaint schedule property originally belonged to Harippadu Madathil Saraswathi Ammal. As per Ext.A5 which is a registered lease deed No.205/1958 of Peermade Sub Registry, the property with the building therein was leased out to the first defendant. Ext.A5 is seen to have been executed by the first defendant in his personal capacity, agreeing to pay a rent of Rs.114/- per month. The lease is executed for a period of three years. The property is comprised in Sy.No.53/5A of Peermade Taluk and the building therein is bearing Door No.5/336. AS 68/96 11 Ext.A5 document does not refer to the name 'Travancore Trades', and the document is not executed by the first defendant in his capacity as the Managing Partner of the concern. Though the lease period was only three years, admittedly, the lease was continued till 4.2.1990. The original landlord Smt.Saraswathi Ammal is no more. She had given the property to her son, Sreenivasa Iyer. Subsequently, late P.K.Saidu Mohammedu Rawther purchased the property as per sale deed No.547 of 1967 of Peermade Sub Registry from Sreenivasa Iyer mentioned above. On the death of Saidu Mohammedu Rawther, his rights in respect of the property devolved upon the plaintiffs who are his legal representatives. The title of the plaintiffs has also been disputed, but, the rights of the second plaintiff is admitted. Apart from the above, when he was examined as DW1, the third defendant has deposed that the purchase of the plaint schedule property by the father of PW1 is a fact that cannot be denied by him. Further, he had filed a suit before the Munsiff's Court, Idukki as O.S.No.280 of 1990 praying for a decree for permanent injunction against his forcible dispossession of the plaint schedule property. Ext.A3 is the plaint in the said suit. In paragraph-4 of Ext.A3, the third defendant in the said suit, who is AS 68/96 12 none other than the second plaintiff in the present suit, is described as the owner of the plaint schedule property. The building number mentioned in the schedule to the said plaint is the number of the building in the present suit. Having filed a suit against the said plaintiff, describing him as the owner of the plaint schedule property, it is not open to the third defendant now to turn around and question the title of the very same person. A comparison of the description of the property contained in Ext.A1 sale deed and Ext.A5 lease deed would show that the property referred to therein is the same. Therefore, it is clear that the plaint schedule property belongs to the plaintiff. It is also clear that no dispute regarding identity of the property arises in this case. Consequently a survey measurement of the property is uncalled for. 17. As already noted above, Ext.A5 lease deed has been executed by the first defendant in his personal capacity. The said document does not indicate that the first defendant had executed the document in his capacity as the Managing Partner of 'M/s Travancore Trades' as contended. It is true that the rent receipts marked as Ext.B1 series issued by late Saraswathi Ammal shows the name of 'Travancore Trades' as the payee of the rent. However, the AS 68/96 13 receipts cannot go on to show that 'M/s Travancore Trades' was also a partnership concern, in the absence of any further proof. If as a matter of fact, M/s 'Travancore Trades' was actually a partnership concern, there would certainly have been better documents to prove the said fact. The said fact is not to be deduced from bits and fragments of evidence like the rent receipts, Ext.B1 series. The fact that no better evidence is available justifies a conclusion that no partnership as contended was ever in existence, as claimed. 18. Further, the third defendant has no case that he was a partner of the firm at its inception. He claims that he was subsequently inducted as a partner. At the time of execution of Ext.A5 rent deed, the third defendant was admittedly not a partner. Ext.A5 does not show that the building was taken on lease by a partnership firm. Therefore, subsequent creation of a partnership firm cannot convert the tenancy into one in the name of the partnership firm. Even if the case of the 3rd defendant is accepted in its entirety, the third defendant would not become a tenant under the provisions of the Kerala Buildings (Lease and Rent Control) Act. Though a working partner may be entitled to participate in the business of the firm, he would not become a tenant in respect of the AS 68/96 14 premises by any stretch of imagination. Even if it is true that the first defendant had constituted a partnership with the third defendant also as a partner, the said act also would not make the third defendant a tenant of the plaint schedule premises. Since the third defendant is not a tenant of the plaint schedule property as contended by him, he is not entitled to protection of the provisions of the Kerala Buildings (Lease and Rent Control Act), 1965. On the contrary, the evidence on record show that the third defendant was actually an employee of the first defendant. Exts.A7, A8, A9 series, A10 and A14 documents show that the third defendant was an employee of the 'Travancore Trades'. 19. The appellants have filed CMP No.435 of 1996 in the above appeal invoking the jurisdiction of this Court under Order 41 Rule 27 of the Code of Civil Procedure to produce nine additional documents, which according to them could not be produced at the time of evidence before the court below. The counsel for the appellants has taken me through the said documents. One is a photo copy of the permit issued to the third defendant for purchase of kerosene. Photo copies of certain bills and statement of accounts, letters that the third defendant had received in his name, AS 68/96 15 his electoral card and photo copy of his ration card are produced. All the above documents show the address of the third defendant as 'M/s Travancore Trades', Vandiperiyar. According to the counsel for the appellants, the documents clearly show that he was residing in the plaint schedule property. However, there is nothing in the said documents to show that he was residing in the property as a tenant thereof. At no time rent has been received from him by the plaintiffs. Since there is no rental arrangement between the plaintiff and the third defendant and since the landlords have not accepted him as a tenant at any time, he cannot claim to be a tenant in respect of the building. It is to be borne in mind that the present suit is for recovery of possession on the strength of title. Since it has already been found that the third defendant is not entitled to the protection of the Buildings (Lease and Rent Control Act), 1965, he cannot resist the claim of the plaintiffs, even if he has been residing in the property as alleged. 20. PW1 has deposed to the fact that the building was surrendered by the first defendant on 4.2.1990. The first defendant did not contest the suit, though he was served with notice. In fact, other than the appellants, none of the other parties have contested AS 68/96 16 the suit. The court below had the benefit of seeing PW1 and watching his demeanour and has believed his testimony. I do not find any ground to upset the said finding. Therefore, the finding of the court below that the property had actually been surrendered on 4.2.1990 by the first defendant is justified. The third defendant does not assert any other claim over the plaint schedule property. The suit is filed for recovery of possession on the strength of title. Since the title of the plaintiffs have been found the court below has rightly granted the decree in favour of the plaintiffs. 21. The counsel for the appellants have not been able to point out any infirmity with the finding of the court below in awarding mesne profits to the plaintiffs. For the foregoing reasons, judgment and decree of the Sub Court, Kattappana in O.S.No:231/93 are confirmed and the appeal is dismissed with costs. K. SURENDRA MOHAN Judge jj AS 68/96 17 K. SURENDRA MOHAN, J. --------------------------------------- A.S.NO: 68 OF 1996 --------------------------------------- JUDGMENT Dated: 14th July, 2009.