IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 RSA.No. 874 of 2005() --------------------- AS.282/2003 of V ADDL. DISTRICT COURT, ERNAKULAM OS.1068/2001 of I ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANT ----------------------------- P.A.KUNJUMOHAMMED, S/O.LATE ABOOBACKER, POTHADY HOUSE, PONNARIMANGALAM, MULAVUKAD P.O., KANAYANNUR TALUK. BY ADV. SRI.T.M.ABDUL LATHEEF SMT.P.RESHMA KABIR SMT.P.VIJAYALAKSHMI. SRI.A.MUHAMMED HASHIM RESPONDENT(S): --------------- 1. SEBASTIAN SIMON MIRANDA, S/O.LATE XAVIER MIRANDA, PUTHENVEEDU, PONNARIMANGALAM. 2. AULDRY FERNANDEZ, W/O.SEBASTIAN SIMSON MIRANDA, PUTHENVEEDU, PONNARIMANGALAM, MULAVUKAD P.O. ADV. SRI.T.I.DANIEL FOR R1 & R2 SRI.DILIP MOHAN FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX (RSA 874/2005) EXHIBIT: EXT.A3 ORIGINAL AGREEMENT DATED 21.9.1994 EXECUTED BETWEEN THE APPELLANT AND THE FIRST RESPONDENT. lgk M.SASIDHARAN NAMBIAR, J ........................................... RSA No.874 of 2005 ............................................ DATED THIS THE 12th DAY OF AUGUST, 2011 JUDGMENT Plaintiff in O.S.1068 of 2001 on the file of First Additional Munsiff, Ernakulam is the appellant. Respondents are the defendants. Suit was filed for eviction and arrears of rent. Appellant contended that the plaint schedule building belongs to him under Ext.A2 settlement deed 2241 of 1975 of SRO, Ernakulam and the father of the first respondent was a tenant of the building and on his death, first respondent was a tenant with liability to pay monthly rent of Rs.250/- and he defaulted to pay the rent from 1.1.1997 and in spite of Ext.A1 notice terminating the tenancy and directing the respondents to surrender possession of the building, they did not do so and therefore appellant is entitled to a decree for eviction and arrears of rent. 2. Respondents filed a joint written statement admitting that the father of the first respondent was originally the tenant of the plaint schedule building and on his death, respondents are residing in the building. It was contended that after the death of RSA 874/2005 2 the father of first respondent, first respondent his mother and second respondent, the wife agreed to purchase the building and in 1995, Rs.1,19,445/- was fixed as consideration and it was paid to the appellant and though he received the amount, a sale deed was not executed at that time and since then respondents are in possession of the building as absolute owners and they are not liable to pay any rent and therefore a suit is not maintainable. 3. Learned Munsiff on the evidence found that though Ext.B1 agreement for sale was disputed by the appellant, Ext.B2 is a copy of the written statement admittedly filed by the appellant in O.S.1075 of 1995, a suit instituted by second respondent in respect of the plaint schedule building, establishes that he admitted the agreement for sale entered into to sell the plaint schedule property for a consideration of Rs.1,19,495/- and he has received the entire consideration. It was therefore held that Ext.B1 agreement show that entire consideration was received by the appellant and respondents were allowed to be in possession of the property, pursuant to the agreement for sale and a suit for eviction is not maintainable. 4. Appellant challenged the judgment before District Court, RSA 874/2005 3 Ernakulam in A.S.282 of 2003. Learned Additional District Judge on re-appreciation of the evidence, found that evidence of appellant as PW1 establishes that he had executed the agreement to sell the plaint schedule property to the first respondent and received the consideration and therefore confirmed the decree of the trial court and dismissed the appeal. It is challenged in the second appeal. 5. When the appeal was heard in part, appellant filed I.A.No.1199 of 2011, an application under Rule 27 of Order XLI of Code of Civil Procedure to receive the original of Ext.B1 agreement containing the acknowledgment showing receipt of the amount, by the first respondent contending that the counsel who appeared before the first appellate court had appeared for the appellant in the earlier suit filed by the second respondent and though the entire records were handed over to the counsel, he omitted to produce the document and the document produced establishes that the agreement for sale no more subsists and therefore it is to be received as additional evidence. In view of the document, original of Ext.B1, which contains the acknowledgment purported to be made by the first respondent, RSA 874/2005 4 learned counsel appearing for the respondents sought time for filing objection. Though directions were issued to file objection within ten days, no objection was filed so far. 6. The appeal was admitted formulating the following substantial questions of law. “1. Whether the courts below were correct in dismissing the suit holding that by execution of Ext.B1 sale agreement, the relationship of landlord and tenant ceased to continue is correct in law unless and until there is legal merger of landlord's right with the tenant as Ext.B1 is concerned it only being an agreement for sale and that too its enforcement period also expired did not create any ownership right over the property” 2)Whether the courts below was correct in dismissing the suit without even finding that the Defendants are entitled for the protection under Section 53(A) of Transfer of Property Act and if so whether Ext.B1 document creates a right under Section 53(A) since none of the ingredients of the said Section are attracted or brought in evidence by the defendants and all the more when the period of enforcement is RSA 874/2005 5 already lapsed by clear bar of limitation ? 7. Learned counsel appearing for the appellant submitted that the additional document produced along with I.A.1199 of 2011 would establish that the agreement for sale relied on by the courts below was not subsisting, as the acknowledgment by first respondent made on the reverse side of the agreement establish that he had received entire sale consideration paid earlier and agreed to surrender possession of the building within 1 ½ years from 21.9.1996 viz, 21.3.1998 and therefore the finding of the courts below is to be set aside. 8. As the original of Ext.B1 agreement is necessary to pronounce a better judgment, the application is allowed and the document is received as additional evidence and marked Ext.A3. 9. The suit was instituted based on the contention that first respondent is a tenant of the plaint schedule building and he defaulted to pay rent from 1.1.1997 and in spite of Ext.A1 notice terminating the tenancy, possession of the building was not surrendered. Respondents, though in the written statement did not specifically contend that they are in possession of the building under Ext.B1 agreement, at the time of evidence relied on Ext.B1 RSA 874/2005 6 to contend that an agreement for sale was entered into between the appellant and first respondent and entire consideration was paid and therefore they are in possession of the property not as tenants but under the agreement and therefore they cannot be evicted. Learned Munsiff relying on Ext.B2 written statement filed by appellant in O.S.1975 of 1995, found that appellant admitted therein that there is an agreement for sale and the entire consideration was paid, relied on Ext.B1 agreement. But the admission in Ext.B1 written statement is about an agreement for sale entered into with the second defendant in that suit and that too on 15.4.1993. It was also admitted therein that out of the sale consideration, Rs.5000/- was received on 15.4.1993. Later the balance of Rs.1,14,495/- was received and receipt was also issued for receipt of the balance consideration. The further contention in Ext.B2 written statement is that later the husband of the plaintiff therein and the son of the second defendant viz first respondent herein, received back Rs.50,000/- and it was agreed that if that amount is not repaid before 10.1.1996, the agreement for sale could be treated as cancelled and on receipt of Rs.69,495/- from the appellant, the building will be RSA 874/2005 7 surrendered. Ext.B1 agreement is not the said agreement referred to in the written statement. Unfortunately, this aspect was not gone into by the courts below. Whatever it be, Ext.A3 now produced herein in the appeal by the appellant, is the original of Ext.B1. Appellant is admitting Ext.B1 agreement though it was disputed before the trial court. Ext.B1 agreement shows that the said agreement was entered into between the appellant and first respondent on 21.9.1994 whereunder appellant agreed to assign 4.633 cents in survey No.310/1, admittedly where the plaint schedule building is standing, for a total consideration of Rs.1,19,495/-, incidentally the same sale consideration admitted in Ext.B2 written statement, and put the first respondent in possession of the property. It was further provided that a right of way is also to be provided and if the way is to be exclusively alloted in addition to the consideration received, Rs.1500/- is to be paid and on such payment and providing the way, a sale deed will be executed. Ext.A3 contains on the reverse side two endorsements purportedly made by the first respondent. Under the first endorsement, it is stated by the first respondent that out of the consideration of Rs.1,19,495/- RSA 874/2005 8 paid, Rs.50,000/- was received back by the first respondent and first respondent agreed to surrender possession of the building on receipt of the balance of Rs.1,00,000/- on or before 10th September. The endorsement is seen dated 21.5.1996. The second endorsement is dated 21.9.1996, which shows that out of the sale consideration of Rs. 1,50,000/-, on 21.9.1996, Rs.25,000/- was received from the appellant and out of the sale consideration of Rs.1,50,000/-, Rs.75,000/- has already been received and the balance of Rs.75,000/- will be paid within 1 ½ years viz by 21.3.1998 and on such payment, the building will be surrendered. Appellant also produced another sheet containing three endorsements purportedly made by the first respondent on 19.2.1998, 13.2.1998 and 8.6.1998 to show receipt of Rs.5000/-, Rs.3000/- and Rs.3500/- together Rs.11,500/-, which will not establish the payment of balance amount of Rs.75,000/- shown in the last endorsement dated 21.9.1996. The argument of the learned counsel appearing for appellant is that subsequently the entire amount was paid and there is evidence to prove the payment. But the present suit is only as by a landlord against a tenant and not a suit based on title. Ext.A3 document RSA 874/2005 9 now produced by the appellant establishes that there was an agreement for sale and respondents have been in possession of the building not as tenants but under the agreement for sale. In the suit there is no case for the appellant that though there was an agreement for sale, the entire consideration received was repaid and therefore the tenancy revived and appellant is entitled to recover possession of the building based on the termination of the tenancy. On the other hand, suppressing the existence of the agreement for sale, the suit was filed. True, Ext.A3 agreement establishes that there was modification of the agreement for sale and the consideration received was repaid. But in the circumstances of the case, I do not find any reason to interfere with the decree passed by the courts below holding that appellant is not entitled to recover possession of the building in the suit. But that does not mean that appellant is not entitled to institute a suit for recovery of possession based on title. As the respondents are contending that they are in possession of the property under an agreement for sale, and even according to them the sale consideration exceeds Rs.100/- and a transfer of the right could only be by a registered document. But no sale RSA 874/2005 10 deed was executed. Hence they can only claim the right available under the agreement for sale and at best it is the protection provided under Section 53A of Transfer of Property Act. But they did not plead the same in the suit. In such circumstances, appellants are at liberty to recover possession on the building in accordance with law based on title. Appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE lgk