IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 RSA.NO. 1237 OF 2009() ----------------------------------- AS.161/2006 OF II ADDL.DISTRICT COURT,ERNAKULAM OS.1360/2003 OF I ADDL.M.C.,ERNAKULAM .................... APPELLANT/APPELLANT/DEFENDANT ---------------------------------------------------- ANTONY I.M., AGEED 59 YEARS,S/O.MANUAL ILLIPARAMBIL, MANUAL INDUSTRIES,DOOR NO.41/2739, BANERJI ROAD,ERNAKULAM-682 018. (DIED) ADDITIONAL APPELLANTS IMPLEADED: ------------------------------------------------------ 2. PHILOMINA @ SHOBA, AGED ABOUT 54 YEARS, W/O. LATE ANTONY I.M., M/S.MANUEL INDUSTRIES, KACHERIPADY, BANERJI ROAD, ERNAKULAM RESIDENCE AT ILIPARAMBIL HOUSE, POTTAKUZHY, KALOOR, KOCHI – 682 017. 3. REHANI FULKARIA, AGED ABOUT 25 YEARS, W/O. VINU KARATHUKULAM AND D/O. LATE ANTONY I.M., DO. DO. 4. SHERIN RANI, AGED ABOUT 23 YEARS W/O. LATE THOMSON KANJIRAKADAN AND D/O. LATE ANTONY I.M., DO. DO. ADDITIONAL APPELLANT A2 TO A4 IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DATED 3.12.2009 ON I.A. 2888/09 BY ADV. SRI.C.HARIKUMAR SMT.V.A.LAZIDA RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------- THE ARCHDIOCESS OF VERAPPOLY, BROADWAY,ERNAKULAM-682 031, REPRESENTED PROCURATOR OF THE ARCH DIOCESS OF VERAPPOLY,REV.FR.JEROM CHAMMANIKODAM,S/O.VARUTHUKUTTY, RESIDING AT LATIN ARCHBISHOP'S HOUSE, BROADWAY,ERNAKULAM. ADV. SRI.K.R.GANESH(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1237 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of December, 2009 J U D G M E N T ---------------------- This Second Appeal was filed by the defendant in the suit. On his death his legal representatives were impleaded as additional appellants. Challenge is to the decree for recovery of possession with rent arrears obtained by the respondent. According to the respondent, plaint schedule building belonging to it was entrusted to the father of deceased appellant as per a rent deed dated 5.4.1963 for rent of Rs.60/- per month payable on the 5th day of every month. As per the terms of the rental arrangement, the tenant was to pay electricity and water charges as well. Later, rent was enhanced to Rs.150/- per month. Tenant was running business under the name and style “Manuel Industries”. Deceased appellant was managing that business. After death of the father, deceased appellant represented to the respondent that the business belonged to him. He continued to pay the monthly rent to the respondent. On expiry of the period of rental arrangement, respondent issued notice to the deceased appellant demanding vacant possession and filed O.S. No.1161 of 1997. In the meantime this Court quashed the Notification under R.S.A. NO.1237 of 2009 -: 2 :- Section 25 of the Kerala Building (Lease and Rent Control) Act (Act 2 of 1965) exempting certain category of buildings from the purview of that Act. In the light of that judgment, O.S. No.1161 of 1997 was withdrawn. Later, on the Supreme Court upholding the validity of the Notification respondent filed the present suit seeking recovery of possession of the building with rent arrears again after issuing notice on 13.8.2001 terminating the tenancy. Deceased appellant admitted the rental arrangement in favour of his father and claimed that he inherited the tenancy. According to him, agreement with the respondent was that he could continue in the plaint schedule building until he wished and hence he is not liable to be evicted. He is entitled to continue in the building so long as he has not contravened terms of the entrustment. Further contention is that notice issued is not valid. He denied the claim of respondent that rent is in arrears. In the course of trial attempt was made by the deceased appellant to amend the written statement to raise a contention denying title of the respondent based on some statement of P.W.1. That was disallowed by the learned Munsiff, as learned counsel for respondent submits. Learned Munsiff granted a decree for eviction with rent arrears which was confirmed by the first appellate court. Hence this Second Appeal raising by way of substantial question of law whether R.S.A. NO.1237 of 2009 -: 3 :- courts below erred in finding that respondent has title over the building in question. It is contended by learned counsel that trial court was not correct in refusing to allow amendment of the written statement denying title of respondent. 2. To prove title, respondent has produced Ext.A6, sale deed in its favour. Exhibit A7, it is not disputed is the registered lease deed executed by father of deceased appellant in favour of the respondent on 5.4.1963. Exhibits A2 and A4 are the copy of notices terminating tenancy in respect of the two rooms. Exhibits A3 and A5 are the reply. Contention now advanced is that respondent has no title over the building in question. Courts below found that deceased appellant was not entitled to raise that contention in view of Section 116 of the Indian Evidence Act. This is not a case where according to the deceased appellant, respondent lost title subsequent to creation of the rental arrangement. Nor did he has a contention that the sale deed in favour of respondent is sham or fraudulent. Contention raised is based on the evidence given by P.W.1. Exhibit A7, registered lease deed is not disputed. In fact it is admitted by deceased appellant that himself and his father were tenants of the building under the respondent and he also claimed to have inherited tenancy right of his father. It is admitted that until the date on which according to the R.S.A. NO.1237 of 2009 -: 4 :- respondent rent fell in arrears, appellant and his father were paying monthly rent to the respondent. Respondent therefore is entitled to seek eviction of its tenant. Deceased appellant and additional appellants are estopped from denying title of the respondent in the circumstances I have stated above. No substantial of question of law is involved. In the circumstances Second Appeal does not merit admission. 3. Learned counsel for additional appellants requested that additional appellants may be granted a year's time to vacate the premises. That request is objected by learned counsel for respondent who submits that rent is in arrears and that additional appellants have other alternative room for their business and they have already shifted business to that room. Having regard to the circumstances stated by learned counsel for additional appellants I am inclined to grant them four month's time from this day to vacate the premises subject to conditions. Resultantly the Second Appeal is dismissed in limine but granting four month's time from this day to the additional appellants to vacate the schedule room subject to the following conditions. (i) Additional appellants shall deposit R.S.A. NO.1237 of 2009 -: 5 :- in the executing court entire rent arrears and damages for use and occupation payable till 30-11-2009 as per the decree within one month from this day. (ii) Additional appellants shall within one month from this day file an affidavit in the executing court undertaking to vacate the premises on the expiry of the said period of four months without putting forth any claim or objection whatsoever. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.1237 of 2009 -: 6 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.1237 OF 2009 =================== J U D G M E N T 18TH DECEMBER, 2009