IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 AS.No. 568 of 1998() ------------------- OS.415/1992 of PRL.SUB COURT,THRISSUR ................ APPELLANT / PLAINTIFF : ---------------------------------- GANGADHARAN, AGED 56 YEARS, SOCIAL WORKER, S/O. THATTIL RAMANKUTTY, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK. BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT / DEFENDANT : ---------------------------------------- RAMAKRISHNAN, AGED 38 YEARS, BUSINESS, S/O. VALIYAPARAKKAL KAMLUKUTTY, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.N.KRISHNAN, J. ------------------------- A.S. No. 568 of 1998 ------------------------------------- Dated this the 30th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thrissur in O.S.No.415/1992. The suit is one for recovery of possession on the strength of title. The brief facts necessary for the disposal of the appeal are stated as follows: 2. Admittedly, the defendant was a tenant under the plaintiff. There was a rent control petition for eviction of the premises. It ended in dismissal. Thereafter, the parties entered into an agreement whereby, it was decided that the tenant can continue to occupy the possession for a period of one year and thereafter to surrender vacant possession within 40 days and that the landlord has to construct a building within a period of 6 months and entrust the tenant on a rent suitable and if in dispute, at the intervention of the mediators. According to the plaintiff, he had constructed the building and the defendant had trespassed into the building, occupied a room and thereby attained the status A.S. No. 568 of 1998 2 of a trespasser and so the plaintiff is entitled to recovery of possession of the property on the strength of title. On the other hand, the defendant would cotend that he is not a trespasser and as per the agreement, the building has been re-constructed and by virtue of a document dated 15.01.1992, the defendant had been inducted into possession as a lessee for a rent for Rs.75/- per month and therefore, his possession is that of a tenant and so he cannot be evicted. 2. The learned Subordinate Judge held that the entrustment alleged by the defendant under Ext.B2 is not correct, but still dismissed the suit of the plaintiff on the ground that the defendant was a tenant of the property and by virtue of the provisions of the Rent Control Act, he was a person entitled to be put in possession of the property and therefore, he continue to be a tenant and so a suit for recovery of possession on the strength of title cannot be maintained. Now 18 years had elapsed and I am informed that the defendant is enjoying the property even without paying any amount as rent, though he claim to be a tenant of the property. It is true that Rent Control Act is a A.S. No. 568 of 1998 3 legislation which intends to prevent the unlawful eviction of the tenants and it protects the rights of the tenant. Equally, there are provisions which safeguards the interest of the landlord as well. Now if a proceeding is initiated under the provisions of the Rent Control Act, seeking a ground for eviction on the ground of reconstruction and when the Court allows such a petition, the mandate to the owner would be to reconstruct the building within a time stipulated and then handover possession of the room to the tenant. The law specifically states that in case of failure of the landlord to do so, provision is provided whereby the tenant will be entitled to claim the amount. By judicial decisions, it has even gone to the extent of stating that the tenant can construct the building and occupy. But whatever it may be, the law makes it explicitly clear that it is only through the intervention of the court such things can be done. It cannot be on the basis that might is right. Therefore, the procedural law and the substantive provision provided therein has to be meticulously followed for the preservation of rule of law and that cannot be forgotten. A.S. No. 568 of 1998 4 3. Now the defendant contends that he has been put in possession of the property by virtue of Ext.B2 agreement. Ext.B2 agreement is alleged to be a photocopy of rent deed executed by the tenant to the landlord. The court below found that it is a document that has not been properly proved and therefore, Ext.B2 cannot be accepted to prove the lease set up by the defendant therefore, Ext.B2 goes. 4. Now the learned counsel for the respondent would submit before me that Exts.B1 and B2 itself create a right infavour of the defendant. I have no quarrel that there is a right created by the agreement in favour of him. The terms of the agreement is to the effect that the building is to be completed within 6 months and the tenant has to be in possession of one such room. In case of failure, the remaining party should pay Rs.1500/- per month to the other party. So when the agreement specifically provides for a remedy to the defendant to implement the terms for the specific enforcement of the agreement, the legal methodology to be adopted is to file a suit for specific performance of the contract and not to trespass into the property by taking law into A.S. No. 568 of 1998 5 his own hands. The finding of the Subordinate Judge that since he was a tenant of the property and that he continue to be a tenant even after the vacation of the premises cannot be considered as correct decision. The re-entry of the defendant in the plaint schedule property has been only through unauthorized means which makes him a trespasser and therefore, the plaintiff is entitled to recover possession on the strength of the title. Now on the quantum of damages for use and occupation. The original rent was Rs. 25/-. The defendant would submit that it will fetch Rs.75/- per month. Plaintiff would contend that he requires Rs.400/- per month as damages for use and occupation and therefore, only a guess method can be made by taking into consideration of time etc. to fix a reasonable amount as damage for use and occupation, I fix it at Rs. 150/- per month from the date of trespass, that is 28.02.1992. 5. I make it clear that if there is a remedy available under Ext.A2, this judgment will not preclude the defendant from moving in that direction. Considering the peculiar facts and circumstances of the case, I also request the parties, if possible, A.S. No. 568 of 1998 6 to arrive at an amicable settlement so that further complication can be averted. By from these discussions, the judgment and decree of the trial court are set aside and the plaintiff is given a decree as follows. 1. The plaintiff is given a decree for recovery of possession on the strength of title and the defendant is directed to surrender the plaint schedule property/premises within a period of three months from today. 2. Plaintiff is also entitled to get damages for use and occupation @ Rs. 150/- per month from 28.02.1992 till he actually surrenders possession of the premises. Considering the facts and circumstances of the case, parties are directed to bear their respective costs. M.N.KRISHNAN, JUDGE ln