Dismissed

P.S.Pushpangathan v. George T.John

Kerala HC11 Jun 2012RSA/726/2012

Case brief

AI extract

What is this about?

In a second appeal regarding recovery of possession, the High Court of Kerala examined the landlord-tenant relationship where the tenant was unaware of the property's assignment. The court dismissed the appeal but granted the appellant three months to vacate, provided specific conditions were met to prevent damage or subletting. The measured damages and rent arrears demands by the lower courts wer

What did the court decide?

Appellant granted three months from the date of judgment to vacate the suit schedule room, contingent upon filing an affidavit of compliance and adhering to conditions against causing damage or sublet

P.S.Pushpangathan Vs George T.John — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 11TH DAY OF JUNE 2012/21ST JYAISHTA 1934

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RSA.No. 726 of 2012 () ---------------------AS.324/2009 of ADDL.DISTRICT COURT,KOTTAYAM OS.280/2008 of MUNSIF COURT, CHANGANACHERRY

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APPELLANT/APPELLANT/DEFENDANT: -----------------------------P.S.PUSHPANGATHAN S/O.SREEDHARAN, AGED 53 YEARS, ATTACHIRA HOUSE SACHIVOTHAMAPURAM, KURICHY VILLAGE CHANGANACHERRY TALUK. BY ADVS.SRI.G.SHRIKUMAR (SR.) SRI.SREEJITH S.NAIR SRI.K.G.JITHU JAGANNATH

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RESPONDENTS/RESPONDENTS/PLAINTIFFS:

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GEORGE T.JOHN

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S/O.JOHN, AGED 48 YEARS, THALASSERY HOUSE

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MANGALAM MURI, CHENGANNOOR VILLAGE

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CHENGANNOOR TALUK

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REPRESENTED BY POWER OF ATTORNEY HOLDER

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THE 3RD RESPONDENT, THOMAS GEBOY PHILIP, S/O.THOMAS

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AGED 43 YEARS, ANJILIMOOTTIL HOUSE

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EZHAKKADAVU P.O., CHERUKOL VILLAGE

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MAVELIKKARA TALUK, ALAPPUZHA DISTRICT-690104

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SUSAN GEORGE,

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W/O.GEORGE T.JOHN, AGED 41 YEARS, THALASSERY HOUSE

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MANGALAM MURI, CHENGANNOOR VILLAGE

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CHENGANNOOR TALUK

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REPRESENTED BY POWER OF ATTORNEY HOLDER THE 3RD RESPONDENT

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THOMAS GEBOY PHILIP, S/O.THOMAS, AGED 43 YEARS

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ANJILIMOOTTIL HOUSE, EZHAKKADAVU P.O.

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CHERUKOL VILLAGE, MAVELIKKARA TALUK ALAPPUZHA DISTRICT-690104

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THOMAS GEBOY PHILIP, S/O.THOMAS, AGED 43 YEARS, ANJILIMOOTTIL HOUSE EZHAKKADAVU P.O., CHERUKOL VILLAGE MAVELIKKARA TALUK, ALAPPUZHA DISTRICT-690104

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A.No.726 of 2012

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Dated this 11^th day of June, 2012

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JUDGMENT

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Faced with a decree for recovery of possession, payment of rent arrears and damages for use and occupation since the date of termination of tenancy, the tenant has brought this second appeal against the judgment and decree of learned Additional District Judge, Kottayam in A.S.No.324 of 2009 modifying the judgment and decree of learned Munsiff, Changanassery in O.S.No.280 of 2008.

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It is not very much in dispute that appellant is a tenant of the shoproom he having obtained tenancy from the prior owner of the building, K.J.Mathew on 01.04.2006. Appellant is running a homeo medical store in the said room. While so, the entire building of which schedule room forms part and the land were assigned to the respondents 1 and 2 as per Ext.A6, assignment deed. Appellant continued to be the tenant of the shoproom. The tenancy was terminated by Ext.A2, notice dated 02.06.2008 which was served on the appellant on 06.06.2008. Since respondents 1 and 2 are abroad, they sued through the third respondent, their power of attorney (Ext.A1 is

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R.S.A.No.726 of 2012

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-: 2 :-

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the power of attorney) for recovery of possession of the shoproom with rent arrears and damages for use and occupation.

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Appellant contended that his rental arrangement was with K.J.Mathew, neither the said K.J Mathew nor the respondents have intimated him about assigning the building in favour of respondents 1 and 2 and hence he is not bound to vacate on the demand of the respondents. He denied that there was rent arrears as pleaded by the respondents.

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Trial court accepted the case of respondents and granted a decree for eviction with rent arrears and damages for use and occupation. First appellate court confirmed the decree for recovery of possession and rent arrears but, gave the appellant some respite in the matter of quantum of damages by reducing the amount.

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Learned counsel contends that there is no attornment of the tenancy by the appellant in favour of respondents 1 and 2, the assignment of suit property in favour of respondents 1 and 2 was without informing the appellant and hence respondents are not entitled to seek eviction.

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Though there was a contention that the third respondent was not entitled to represent respondents 1 and 2 as power of attorney, in the light of the evidence of the third

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R.S.A.No.726 of 2012

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respondent as PW1 and Ext.A1, that contention does not survive.

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Ext.A6 shows that the land with the building thereon of which according to the respondents the shop room referred to in the plaint schedule forms part was acquired by the respondents 1 and 2 from K.J Mathew. It appears that there was a contention raised at the time of trial that the old structure referred to in Ext.A6 is not the shoproom referred to in the plaint schedule. PW1 has clarified that the old building referred to in Ext.A6 was let out to different persons and one room was let out to the appellant by the prior owner (K.J Mathew).

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There is evidence and it is not very much in dispute that the property belongs to respondents 1 and 2 as per Ext.A6. The mere fact of assignment in favour of respondents 1 and 2 being without notice to the appellant does not change the character of his occupation. Appellant continued to be a tenant of the building. That tenancy was terminated by Ext.A2. Respondents are therefore entitled to get possession of the building.

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So far as rent arrears is concerned, courts below held that appellant did not establish the plea of discharge.

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On hearing learned counsel and going through the judgments under challenge I am satisfied that no substantial

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R.S.A.No.726 of 2012

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-: 4 :-

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question of law is involved requiring admission of the appeal.

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Learned counsel has requested six months' time for the appellant to vacate the premises. It is submitted that appellant is running a homeo medical store in the shoproom.

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Having regard to the difficulties of the appellant stated by the learned counsel, I am inclined to grant three months' time to the appellant to vacate.

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Resultantly the second appeal is dismissed. Appellant is granted three (3) months' from this day to vacate the schedule room subject to the following conditions:

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(a) Appellant shall file affidavit in the trial court that by the expiry of the said period of three months he shall vacate the schedule room without putting forth any claim or objection whatsoever.

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(b) Appellant shall not in the meantime cause any damage to the room, alienate, encumber or induct third parties into possession of the said room.

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(c) In case any of the above conditions is violated, it will be open to the respondents to proceed with execution notwithstanding the time granted hereby.

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(THOMAS P. JOSEPH, JUDGE)

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Sbna/-

P.S.Pushpangathan v. George T.John

Case brief

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P.S.Pushpangathan v. George T.John

Case brief

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