IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 RSA.No. 1202 of 2008() ---------------------- AS.196/2004 of II ADDL. DISTRICT COURT/SPL. COURT (NDPS ACT CASES), THODUPUZHA OS.36/2002 of MUNI-MAGI COURT, DEVIKULAM .................... APPELLANT/ 2ND RESPONDENT/DEFENDANT NO.2 --------------------------------------------------------- JANCY, W/O.LATE DR.BALAKRISHNAN, AGED 42 YEARS, M.P.NO.IX/1210,NEAR GRAHAMSLAND ROAD, MUNNAR, IDUKKI DISTRICT. BY ADV. SRI.N.M.VARGHESE SRI.ROY THOMAS RESPONDENTS/APPELLANT/RESPONDENT NO.1/PLAINTIFF/1ST DEFENDANT ---------------------------------------------------------------------- 1. M/S.TATA TEA LTD., REGIONAL OFFICE, MUNNAR, KDH VILLAGE, MUNNAR-685 612. 2. THE SECRETARY, MUNNAR GRAMA PANCHAYAT, KDH VILLAGE, MUNNAR.PO, MUNNAR-685 612. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 1202 of 2008 ========================= Dated this the 4th day of December, 2008. JUDGMENT The 2nd defendant in O.S. No. 36 of 2002 on the file of the Munsiff's Court, Devikulam is the appellant in this Second Appeal. The said suit instituted by the 1st respondent herein namely Tata Tea Company was one for declaration of title and for recovery of possession. 2. The case of the plaintiff can be summarised as follows:- The plaintiff owns several buildings in Kannan Devan Hills Village in and around the Munnar town. The plaint schedule building bearing building No. MP.IX/1210 (former MP VII/414-3) is one such buildings owned by the plaintiff company. The 1st defendant is the Munnar Grama Panchayat and the 2nd defendant is the widow of late Dr. Balakrishnan. On 15.02.1980, the 1st defendant Grama Panchayat executed Ext.A2 agreement taking the plaint schedule building on licence from the plaintiff for a period till 31.12.1980 for the use of the building as residence for its employees temporarily. The 1st defendant inducted the husband of the 2nd defendant Dr. Balakrishnan in the building for his residence with the R.S.A. No. 1202/2008 : 2: family. Accordingly, the 2nd defendant started residing in the building along with her husband. After the expiry of the period of licence, the 1st defendant continued in the plaint schedule property on the same terms and conditions mentioned in Ext.A2. In the meanwhile, Dr. Balakrishnan expired. After his death his widow, the 1st defendant ought to have handed over the plaint schedule building to the plaintiff. But, the 1st defendant did not do that. Instead, the 1st defendant allowed the 2nd defendant to continue in the plaint schedule building with her family. The 1st defendant has no right to retain the building against the terms of Ext.A2 licence agreement. The 2nd defendant is only a trespasser in the plaint schedule building. Even though the plaintiff issued a letter to the 1st defendant Panchayat demanding arrears of licence fee and calling upon it to surrender the building, the 1st defendant issued a reply stating that the 1st defendant did not want to continue the licence agreement and required the plaintiff to take necessary steps to evict the occupants from the building. The plaintiff subsequently issued Ext.A5 lawyer notice dated 11.01.2002 to the 1st defendant demanding surrender of vacant possession of the plaint schedule R.S.A. No. 1202/2008 : 3: residential building with arrears of licence fee. No reply was sent by the 1st defendant. The 1st defendant is bound to vacate the building and to pay arrears of licence fee. Hence the suit for declaration of title and for recovery of possession of the plaint schedule building. 3. The 1st defendant resisted the suit contending inter alia as follows:- The 1st defendant Panchayat has not resolved to obtain the plaint schedule building on lease or licence from the plaintiff nor has the Panchayat decided to pay any rent or licence fee to the plaintiff in respect of the plaint schedule building. Hence the Panchayat has not obtained the plaint schedule building on lease or licence. The Panchayat is, therefore, not liable to pay any rent or licence fee to the plaintiff. If the plaintiff has entered into any licence transaction with the then Secretary of the Panchayat, it was not authorised by the Panchayat committee and the liability or the obligation in that behalf is that of the then Secretary which is only personal. 4. The 2nd defendant/appellant resisted the suit contending inter alia as follows:- R.S.A. No. 1202/2008 : 4: The 1st defendant did not execute any licence agreement pertaining to the plaint schedule building. The plaint schedule building was originally leased out to the 1st defendant by the erstwhile KDHP Company which was the predecessor-in- interest of the plaintiff company. The same lease is continued as such till today. The area in which the schedule building is situated comes within the purview of Kerala Building (Lease and Rent Control) Act, 1965. This Court has no jurisdiction to entertain the present suit. The plaint schedule building was not allotted to Dr. Balakrishnan as the employee of the Panchayat. Dr. Balakrishnan died intestate leaving behind the 2nd defendant and her children as his legal heirs. The other legal heirs are necessary parties to the suit which is, therefore, bad for non joinder of necessary parties. Even though this defendant tendered the rent to the plaintiff by sending the same through a cheque, the same was returned with a letter stating false grounds. The plaintiff is wilfully avoiding the receipt of rent in respect of the plaint schedule building. The plaintiff has approached the court with uncleaned hands. This defendant who is not a trespasser, is ready and willing to pay the arrears of rent. The suit is liable R.S.A. No. 1202/2008 : 5: to be dismissed. 5. On the side of the plaintiff, the Assistant Manager of the plaintiff company was examined as PW1 and Exts. A1 to A5 were got marked. On the side of the 2nd defendant/appellant, Exts.B1 to B6 are seen marked. But, no oral evidence was adduced either on behalf of the appellant or on behalf of the 1st defendant Grama Panchayat. 6. The learned Munsiff, after trial, as per judgment and decree dated 17.12.2003 came to the conclusion that except filing a written statement disputing Ext.A2 licence deed, no evidence was adduced by the 1st defendant Panchayat and that the 1st defendant who has not disputed that the signatory to Ext.A2 was the Executive Officer of Munnar Grama Panchayat, was estopped from contending that Ext.A2 was not binding upon the 1st defendant. However, the trial court came to the curious conclusion that although the plaintiff is not admitting any sort of relationship between the plaintiff and the 2nd defendant, it had issued Ext.B6 letter to the 2nd defendant claiming arrears of licence fee and directing the 2nd defendant to renew the licence. If so, a direct lease between the plaintiff and the 2nd defendant cannot be ruled out and in that case, R.S.A. No. 1202/2008 : 6: going by the contention of the 2nd defendant, the plaint schedule building was leased out to the 2nd defendant by the predecessor of the plaintiff company. Therefore, the 2nd defendant can be evicted only in accordance with the provisions of the Kerala Building (Lease and Rent Control) Act, 1965. The suit was accordingly dismissed with costs. On appeal preferred by the plaintiff as A.S. No. 196 of 2004, the lower appellate court allowed the appeal and held that Ext.A2 licence deed is binding on the 1st defendant and in the absence of any proof regarding the direct lease set up by the 2nd defendant between herself and the plaintiff company, the plaintiff was entitled to a decree as prayed for. Accordingly, the appeal was allowed and the decree passed by the trial court was reversed and the suit was decreed as prayed for. Hence this Second Appeal by the 2nd defendant. 7. The following are the questions of law formulated in the memorandum of Second Appeal:- a. Whether or not the 1st appellate court justified while holding that the so called Ext.A2 licence agrement in dispute which was expired on 31.12.1980 wherein late Dr. Balakrishnan was not a party has to be followed in letter and terms, without ably reversing the finding of the trial court that the said document allegedly executed on 15.02.1980 is legally unsustainable and cannot sand in the way of the lease being continued admittedly from 1981, in the light of the decision R.S.A. No. 1202/2008 : 7: rendered by the Hon'ble Supreme Court reported in AIR 1988 SC 1845 where it is held that ultimately the question whether a transaction is a lease or licence turns on the operative intention of the parties and there is no single simple litmus test to distinguish one from the other? (Rajbir vs. M/s. S. Chokosiri & Co.) b. Whether or not the 1st appellate court is justified on reversing the decree and judgment of the trial court dismissing the suit for declaration of title and recovery of possession on the grounds that the plaintiff miserably failed to prove any title and that even if the plaintiff have any title the recovery of possession sought for would have been materialized only by the intervention of the Rent Control Court as there was a lease; on a feeble explanation that the title of the plaintiff has not questioned by the defendants as the settled position is that no title can be conferred even on consent? c. Whether or not the impugned decree and judgment rendered by the 1st appellate court could be drawn naturally and legally while appreciating the available inputs and the concrete well established finding of the trial court and whether the 1st appellate court is justified while reversing the well reversed finding of the trial court? 8. The learned counsel appearing for the appellant/2nd defendant made the following submissions before me in support of the appeal:- The plaintiff having not established that Ext.A2 agreement was executed between the predecessor-in-interest of the plaintiff company and the 1st defendant Panchayat was not entitled to evict either the 1st defendant Panchayat or the 2nd defendant who is admittedly in possession of the plaint schedule building. The specific case of the appellant is that R.S.A. No. 1202/2008 : 8: the company had entrusted the building on a rental arrangement to the appellant's husband Dr. Balakrishnan. It was for the plaintiff to prove the said entrustment by producing the lease deed. The very fact that under Ext.B6 letter, the plaintiff had called upon Dr. Balakrishnan to pay arrears of licence fee and renew the licence, will show that there was some transaction between the plaintiff and Dr. Balakrishnan. Hence it was for the plaintiff to produce the original licence deed if any. This fortified the contention of the appellant that her husband was a lessee under the plaintiff. If so, the trial court was justified in dismissing the suit holding that the appellant could be evicted only in accordance with the provisions of the Kerala Building (Lease and Rent Control) Act, 1965. The lower appellate court was wrong in reversing the decree passed by the trial court. 9. I am afraid that I cannot agree with the above submissions. This is not a case where either the 1st defendant or the 2nd defendant has disputed the title of the plaintiff company. Even the trial court which dismissed the suit has come to the conclusion that it was not open to the 1st defendant Panchayat to contend that Ext.A2 agreement of R.S.A. No. 1202/2008 : 9: licence dated 15.02.1980 was not executed by the Executive Officer of the Panchayat. Except raising a contention in the written statement, the Panchayat did not adduce any evidence in support of its contention. As against this, the plaintiff examined its Assistant Manager as PW1 and got marked the documents, the contents of which are also proved through PW1. 10. Now coming to the contention of the appellant, she had specifically contended in the written statement that the Panchayat was a lessee under the plaintiff and not a licensee. In the face of Ext.A2 agreement of licence, the said contention cannot be accepted without any proof to the contra. Even according to the appellant, the building was given to the Panchayat. The evidence of the plaintiff will show that the building was given to the 1st defendant panchayat for housing its employees temporarily till 31.12.1980 and it remained with the Panchayat even after 31.12.1980. The Panchayat was allowing its employees to occupy the building. It may be true that Dr. Balakrishnan was not the employee of the Panchayat. But he got possession of the building only under the Panchayat. The appellant's case that there was a direct rental R.S.A. No. 1202/2008 : 10: arrangement between her husband and the plaintiff, remains only in the realm of pleadings without any proof. The appellant did not even mount the witness box. In fact, no oral evidence at all was adduced by the appellant. If a party to the suit does not appear in the witness box and state her own case on oath and does not offer herself to be cross examined by the opposite party, a presumption would legitimately arise that the case set up by her is not correct. [Vidhyadhar v. Manikrao (1999 (3) SCC 573)]. This is a case in which as mentioned earlier the appellant not only admits the title of the plaintiffs but also sets up a rental arrangement under the plaintiff. In such a case, the burden was not on the plaintiff but on the defendant to prove the said rental arrangement. [Mt. Murti Dusadhin and others v. V. Mohammed Mir Khan and others (AIR 1965 SC 875) and Kochu Ouseph v. Joseph and others (1976 KLT 512 (FB)]. The appellant having miserably failed to prove the rental arrangements set up by her was rightly held by the lower appellate court to be not entitled to continue in possession. The suit was justifiably decreed as prayed for by the lower appellate court rightly reversing the decree passed by the trial court. No question of R.S.A. No. 1202/2008 : 11: law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 4th day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1202/2008 : 12: