IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 RSA.No. 1237 of 2004() ---------------------- AS.76/2001 of SUB COURT,KATTAPPANA OS.35/1997 of MUNSIFF COURT, IDUKKI .................... APPELLANT/RESPONDENT/PLAINTIFF: --------------------------------------------------- ANNAMMA, D/O. JOSEPH, KANNATTUKUNNEL HOUSE, PANDIPPARA KARA, THANKAMANI VILLAGE. BY ADV. SRI.PKM.HASSAN SRI.J.JULIAN XAVIER SRI.P.VISWANATHAN SRI.J.JULIAN XAVIER SRI.PKM.HASSAN RESPONDENT/ APPELLANT/DEFENDANT: ----------------------------------- U.T. AUGUSTINE, S/O. THOMAS, UNDASSAMPARAMPIL HOUSE, PANDIPPARA KARA, THANKAMANI VILLAGE. ADV. SRI.T.J.MICHAEL SRI.P.NOOR SEMIR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 6/7/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1237 OF 2004 --------------------------------------------- Dated 6th July, 2011 JUDGMENT Plaintiff in O.S.35/1997 on the file of Munsiff court, Idukki is the appellant. Respondent is the defendant. The suit was instituted for recovery of possession of the plaint schedule building with arrears of rent. The allegation in the plaint was that respondent obtained the plaint schedule building from late Joseph, father of the appellant on a monthly rent of Rs.250/- and while so, on 5/2/1995 Joseph gifted the property in her favour and she is therefore, the landlady. But in spite of the gift, father was collecting rent till his death on 16/7/1996 on her behalf. By sending Ext.A5 notice, tenancy RSA 1237/04 2 was terminated which was received by the respondent on 14/2/1997, but he failed to pay arrears of rent and therefore, appellant is entitled to recover possession of the building and the respondent is bound to surrender the building and pay the arrears of rent. 2. Respondent resisted the suit contending that there is no landlord and tenant relationship between the appellant and the respondent or earlier between the father of the appellant and the respondent. Respondent also contended that building K.P.V/308 dos not exist and on that ground also appellant is not entitled to the recovery of possession sought for. 3. Learned Munsiff on the evidence of Pws.1 to 5, Dws.1 to 3, Exts.A1 to A8 and B1 to B12 and C1 to C2(a) and X1 to X2(a) granted a decree upholding the lease and finding that RSA 1237/04 3 appellant appellant being a co-owner entitled to recover possession of the building with arrears of rent. Respondent challenged the decree before Sub Court, Kattappana in A.S.76/2001. Learned Sub Judge on re- appreciation of the evidence found that the suit being instituted by a landlady against the tenant on termination of the tenancy, question of title is irrelevant and appellant could succeed only on establishing the lease and as the lease was not established, held that appellant is not entitled to the decree sought for. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1) When several inconsistent contentions are RSA 1237/04 4 raised unsuccessfully by the respondent/defendant, the case of the appellant/plaintiff which has got the preponderance be accepted in the facts and circumstances of the case ? 2) When the title to the property has been admitted, is it worthwhile to drive the parties again to a litigation, the result of which is obvious ? 5. Learned counsel appearing for the appellant was heard. 6. Learned counsel argued that though the suit was filed based on the lease and claiming that the tenancy was terminated, when learned Munsiff has considered the question of title also, first appellate court should not have interfered with the decree. Learned counsel would argue that even if, the appeal is to be dismissed, appellant is RSA 1237/04 5 entitled to institute a fresh suit based on title and in such circumstances, to avoid multiplicity of suits, the decree granted by the trial court should have been confirmed. Learned counsel appearing for the respondent submitted that as the question of title is not a matter which was agitated, a decree cannot be granted based on title. 7. The suit is for recovery of possession on termination of tenancy by the landlady against the alleged tenant. The allegation was that father of the appellant granted a lease, in favour of the respondent and he is continuing in possession of the plaint schedule building as a tenant with liability to pay monthly rent of Rs.250/-. Despite the contention raised by the respondent that there was no lease and he is not a building tenant, finding that preponderance of RSA 1237/04 6 evidence establish the lease, a decree for eviction was granted. First appellate court on re-appreciation of the evidence found that there is no evidence to prove the lease. The question is whether appellant succeeded in proving that there was a lease by her father in favour of the respondent. In Ext.A5 reply respondent specifically denied the lease. In spite of the awareness of the defence of the respondent appellant did not disclose when the lease was granted, whether it was oral or evidenced by any document and if oral who were presented at the time of lease in the plaint. Evidence of appellant as PW1 establish that she has no personal knowledge with regard to the granting of lease. In the light of the evidence, finding of the first appellate court that respondent is not a tenant as the lease was not established is perfectly correct. RSA 1237/04 7 That factual finding cannot be interfered in the light of the evidence on record. 8. As rightly found by the first appellate court, when the suit is not based on title and is only on the strength of the lease in spite of the contentions of the respondent that he is not tenant appellant is not landlady did not seek relief on the strength of title. Even the plaint was not amended seeking a decree for recovery of possession on the strength of title. The suit remained as one by the landlady against the tenant paying court fee under Section 43 of Kerala Court Fees and Suit Valuation Act. In such circumstances, finding of the first appellate court that appellant is not entitled to a decree directing respondent to vacate the plaint schedule building with arrears of rent is perfectly legal and correct and warrant no interference. RSA 1237/04 8 If the suit is now to be treated as suit based on title as canvassed by the learned Senior counsel respondent may be in a position to raise several contentions, which need not be raised in a suit by a landlord against the tenant for eviction. Hence the suit cannot be treated as one for recovery of possession on the strength of title. A decree cannot be granted based on title even if appellant has title. Hence the appeal can only be dismissed. It is made clear that dismissal of the suit will not affect the right of the appellant to seek recovery of possession on the strength of title, if she has title. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.