IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 SA.No. 617 of 2000(F) -------------------------------- OS. 774/1994 OF ADDL.MUNSIFF COURT, KOZHIKODE I. AS. 141/1997 OF THE IIND ADDL. SUB COURT, KOZHIKODE APPELLANT(S): RESPONDENT/DEFENDANT -------------------------------------------------------------- MANICHERI THAZHATH M.T.SREEDHARAN PANICKER, AGED 35, S/O. RAGHAVAN PANICKER PADINHATTUMMURI AMSOM, KIZHAKKUMMURI DESOM, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): APPELLANT/PLAINTIFF ----------------------------------------------------------- E.NABEESA, W/O. MOOSA, AGED 41, KURUVATTOOR AMSOM PARAMBIL DESOM, KOZHIKODE ADV. SRI.C.P.MOHAMMED NIAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ODER ON CMP. NO.1090/2001 IN SA. NO.617/2000 DISMISSED 20/12/2010 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.S.GOPINATHAN, J. --------------------------- S.A.No.617 OF 2000 --------------------------- Dated this the 20th day of December, 2010 J U D G M E N T ~~~~~~~~~~~ Th defendant, in O.S.No.774/1994 on the file of the Munsiff's Court-I, Kozhikode, is the appellant. The respondent instituted the above suit seeking a decree of redemption of Ext.A1 mortgage with a plea that the respondent purchased the plaint schedule properties from one Chandran and that the appellant is a mortgagee under the vendor of the appellant. 2. The appellant contended that Ext. A1 mortgage deed was not at all acted upon and that the appellant had been in possession of the plaint schedule properties as a lessees since February 1985 and that he is entitled to protection under Act 2 of 1965 and prayed for dismissal of the suit. 3. After raising the issues, the parties were sent for trial. The respondent and the appellant were examined as PW1 and DW1 respectively. On the side of the respondent, Ext.A1 to A3 were marked. The trial court on appraisal of the evidence S.A.No.617/2000 2 arrived at a finding that the appellant had been in possession of the plaint schedule properties even before Ext.A1 as a lessee and there is nothing on record to show that the lease transaction was terminated. It was further found that in view of the fact that the appellant is a lessee, the appellant is not liable to be evicted. Consequently, the suit was dismissed. Aggrieved by the above decree and judgment dismissing the suit the respondent preferred appeal as A.S. No.198/1997 before the District Court, Kozhikode. It was made over the Subordinate Judge, where it was renumbered as A.S.No.141/1997. In appeal, the appellant and respondent produced additional documents. The documents were seen marked as Ext.B1 and A4 respectively. The appellate court arrived at a finding that there is nothing on record to show that the appellant was a lessee in respect of the plaint schedule properties before the execution of Ext.A1. Having found no reason to decline the prayer of redemption, while allowing the appeal, the judgment and decree of the trial court were set aside and the suit was decreed. Now this Second Appeal. S.A.No.617/2000 3 4. In the appeal memorandum, the following questions of law are raised. “i) Whether there will be an automatic merger of the interest of a lessee with that of mortgage when the same person is the lessee and mortgage? ii) In the absence of proof of surrender of lease by the defendant, on the redemption of mortgage, whether the plaintiff is entitled recovery of possession? iii) Whether there is a lease agreement before Ext.A1 document? iv) Whether Ext.B1 and B4 (A4) are admissible or not? v) Whether the judgment and decree of the appellate court is sustainable or not?” 5. The learned counsel appearing on either side were heard. Execution of Ext.A1 is not at all disputed. The appellant would contend that Ext.A1 was not acted upon because appellant was in possession of the plaint schedule properties since February, 1985, whereas Ext.A1 was executed on 9.3.1988. However, the learned counsel for the appellant fairly conceded that Ext.A1 being a registered document, it would create a mortgagor-mortgagee relationship between the respondent and appellant respectively. It is also conceded that in the event S.A.No.617/2000 4 Ext.A1 mortgage is not redeemed, the respondent could not evict the appellant even if the appellant is a lessee in respect of the plaint schedule properties. In the above circumstance, I find no reason to decline the decree for redemption under challenge. The appellate court had correctly granted the decree for redemption. 6. The question then arises is whether the appellant is liable to be evicted from the plaint schedule properties. The appellant seeks immunity from eviction asserting that the appellant is a lessee in respect of plaint schedule properties and can be evicted only by recourse to Act 2 of 1965. The respondent would specifically deny the same. Before the trial court, the respondent denied the lease transaction. The appellant asserted the lease transaction. So, regarding the alleged lease, there is oath against the oath. To establish that, the appellant had been in possession of the plaint schedule properties before Ext.A1, the extract of the building tax assessment register for the year 1987-88, which was marked as Ext.B1, was produced by the appellant. Ext.B1 would show that S.A.No.617/2000 5 during the year 1987-88 the appellant is shown as a tenant under the vendor of the respondent. To negative the plea of lease, the respondent produced Ext.A4 which would show that during the year 1982-87 the building was in possession of the one Aboobacker. If Ext.A4 is given relevance, the story that the appellant had been in possession of the plaint schedule properties from February 1985 is not true. But the learned counsel for the appellant submitted that since Ext.B1 covers from 1.4.1987 Ext.B1 is an ample proof to show that even before Ext.A1 dated 9.3.1988 the appellant is in possession of the plaint schedule properties. But admittedly Ext.A1 was executed during the financial year 1987-88. Ext.B1 is silent as to from which date onwards the appellant is occupying the building situated in the plaint schedule properties. So long as there is nothing to show that the appellant was in possession of plaint schedule properties even before Ext.A1, Ext.B1 has no significance. The learned counsel even sought for time for providing an opportunity to examine the Secretary of the local authority and to establish the date on which the appellant got possession of the plaint schedule properties. S.A.No.617/2000 6 7. Going by the evidence on record, I find little merit in the submission. As I mentioned earlier, execution of the mortgage deed, copy of which is Ext.A1 is not disputed. Ext.A1 didn't contain any whisper that the appellant had been in possession of the plaint schedule properties before the execution of Ext.A1. If appellant was in possession of plaint schedule properties before Ext.A1, there was no difficulty at all to mention such possession in Ext.A1. Admittedly lease hold right is larger than the mortgage right. If appellant had such larger right at the time of Ext.A1, that would have been definitely recorded in Ext.A1. On the other hand, Ext.A1 narrates that the appellant was put in possession of the plaint schedule properties as per Ext.A1. To put it shortly, Ext.A1 itself would belie the plea of lease. Now, if the prayer sought for by the learned counsel for the appellant is granted, it would be allowing the appellant to adduce evidence contrary to the narrations in the admitted document. In the absence of any evidence to show that before the date of execution of Ext.A1 the appellant had been in possession of the plaint schedule property, there is no merit in the contention. Adding to the above, there is no case in the S.A.No.617/2000 7 appeal memorandum that the courts below anyway didn't allow the parties to adduce evidence. In fact, the appellate court was very lenient in allowing the parties to adduce additional evidence and it is thereby Exts.A4 and B1 were brought into evidence. In the event, the appellant was so desirous of adducing evidence, the appellant could have applied before the 1st appellate court to adduce further evidence. But not chosen to. Such being the circumstance revealed out, I find little merit in the submission that the appellant should be given a further opportunity to adduce further evidence after sixteen years. It is very pertinent to note that the appellant has not produced any rent receipt which would have been supporting the plea of the lease transaction. The appellant had also not produced any document to show that the appellant had been paying profession tax in respect of the business run in the plaint schedule building even before Ext.A1. So also, the appellant could have examined his alleged lessor, who was the assignor, in favour of the respondent. But not chosen to. The result is that there is no evidence in support of the plea of lease. S.A.No.617/2000 8 8. In the above circumstance, I find that the appellate court was right in arriving at a conclusion that there is no evidence to conclude that the appellant was in possession of the plaint schedule properties as a lessee. It is a finding on facts. No question of law that requires to be resolved in Second Appeal arises. There is no merit in the request for remanding the case so as to enable the appellant to adduce further evidence. The appeal is devoid of merit and accordingly it is dismissed. However, I make no order as to costs. (P.S.GOPINATHAN, JUDGE) ps