Dismissed

Gopalakrishnan Nair v. R.Keralavarma

Kerala HC29 Feb 2016RSA/71/2016

Case brief

AI extract

What is this about?

In this second appeal against a decree in a suit for eviction, the High Court rejected the contention that the execution of a lease deed could be challenged. The Court also dismissed the plea regarding Section 106 of the Kerala Land Reforms Act due to insufficient specific pleading on the date of construction in the written statement.

What did the court decide?

The second appeal was dismissed; all interlocutory applications in the appeal are closed.

Gopalakrishnan Nair Vs R.Keralavarma — Property and Title | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937

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RSA.No. 71 of 2016 ()

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---------------------AS 180/2013 of ADDL.DISTRICT COURT -II, MAVELIKKARA OS 173/2006 of MUNSIFF COURT, HARIPAD

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APPELLANT/APPELLANT/DEFENDANT :

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-------------------------------------------------------

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GOPALAKRISHNAN NAIR, AGED 55 YEARS, S/O. RAGHAVAN NAIR, PROPRIETOR, AISWARYA HOTEL, NEAR G.R.ELECTRICALS, KARTHIKAPPALLY JUNCTION, AISWARYA, CHINGOLI MURI, CHINGOLI VILLAGE, KARHTIKAPPALLY TALUK.

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BY ADVS.SRI.S.SANAL KUMAR SRI.M.T.SURESHKUMAR SMT.T.J.SEEMA SMT.BHAVANA VELAYUDHAN SMT.SMITHA PHILIPOSE

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RESPONDENT/RESPONDENT/PLAINTIFF :

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R. KERALAVARMA, AGED 59 YEARS, S/O. RAMAVARMA KOITHAMPURAN, KOIKKAL KOTTARAM, PUTHUKUNDAM MURI, KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT-690516.

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BY ADV. SRI.V.K.BALACHANDRAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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R.S.A. No.71 of 2016

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Dated 29^th February, 2016.

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J U D G M E N T

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The defendant in a suit for eviction is the appellant in this second appeal. The case of the plaintiff is that the plaint schedule item No.1 building was let out by him to the defendant on 15.5.2004 for running a tea shop therein as per the terms of Ext.A1 lease deed. It is alleged by the plaintiff that the tenancy arrangement between the plaintiff and the defendant in respect of the plaint schedule item No.1 building was terminated and that therefore, the plaintiff is entitled to evict the defendant from the plaint schedule item No.1 building. The defendant resisted the suit by filing a written statement. The contention raised by the defendant in the written statement was that the property in which th e building sought to be evicted is situated was taken on a ground rent basis by the father of the defendant from the mother of the plaintiff on 20.4.1960 and that the

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RSA No.71 of 2016

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building sought to be evicted was constructed by the father of the defendant in the property by spending money from his pocket. As such, according to the defendant, there is no tenancy arrangement in respect of the building in question between the parties. The execution of Ext.A1 lease deed has also been denied by the defendant in the written statement filed by him. The trial court rejected the case of the defendant and decreed the suit. Though the matter was taken up in appeal, the appellate court confirmed the decision of the trial court and hence this second appeal.

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Heard the learned counsel for the appellant as also the learned counsel for the respondent.

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The learned counsel for the appellant contended that though the execution of Ext.A1 lease deed has been disputed by the defendant, the same has not been proved by the plaintiff. The learned counsel for the appellant also contended that Exts.B1 to B4 produced by the defendant in the suit would indicate that the defendant is in possession of the building sought to be evicted prior to 15.5.2004 also and that

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RSA No.71 of 2016

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therefore, the case of the plaintiff that the defendant is a tenant of the building from 15.5.2004 is incorrect. The learned counsel for the appellant further contended that since the predecessor of the appellant was in possession of the property in which the building is situated, from 20.4.1960 onwards and since the building therein was constructed by the predecessor of the defendant, he is entitled to the benefit of Section 106 of the Kerala Land Reforms Act. While conceding that the materials on record are not sufficient to establish that the defendant is entitled to the benefit of Section 106 of the Land Reforms Act, the learned counsel further contended that since no issue was framed by the trial court in that regard, he was unable to adduce evidence in support of the said case.

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The plaintiff who gave evidence as PW1 deposed that the defendant has executed Ext.A1 lease deed before him. PW2 is a witness to Ext.A1 lease deed. PW2 also deposed that Ext.A1 is a document executed by the defendant. The dispute as to the execution of a document is a pure question of fact. The courts below which could see the witnesses and observe

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their demeanour accepted the versions given by PW1 and PW2 as regards the execution of Ext.A1 lease deed. I do not think that the said issue, in the circumstances, can be raised by the defendant, in a second appeal filed under Section 100 of the Code of Civil Procedure. The argument of the learned counsel for the appellant as regards the execution of Ext.A1, in the circumstances, is liable to be rejected.

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Coming to the issue relating to the genuineness

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of Ext.A1 lease deed, the contention raised by the learned counsel for the appellant was that Exts.B1 to B4 documents would indicate that the defendant has been in possession of the building sought to be evicted prior to 15.5.2004 also and therefore, the case of the plaintiff that the defendant was put in possession from 15.5.2004 as per the terms of Ext.A1 lease deed cannot be believed. Ext.B4 is a licence issued to the defendant from the Karthikappally Grama Panchayat in respect of the building sought to be evicted. Ext.B5 is the certificate of renewal of licence to manufacture food for sale, issued by the concerned licensing authority on 7.9.2004. Exts.B4 and B5

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contain the number of the building sought to be evicted. Both the said documents are documents issued after Ext.A1 lease deed. As such, the said documents may not help the defendant in advancing his case. Exts.B1 to B3 are registration certificates obtained by the defendant under the Shops and Commercial Establishments Act in respect of a tea shop. The said documents would indicate that the defendant has obtained registration in respect of the tea shop referred to therein from 1991 onwards. It is seen that the shop room in respect of which the said documents are issued is not referred to therein. Even if it is assumed that the said documents are issued in respect of the building sought to be evicted, I do not think that the said documents would in any way help the defendant to establish that Ext.A1 is not a genuine document. The plaintiff as PW1 has admitted that the defendant was in possession of the building even prior to Ext.A1. As such, when the said fact is not in serious dispute, merely for the reason that Ext.A1 is executed not as a renewal of the existing lease, but as a fresh lease, it cannot be said that the said document is not genuine. As such,

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the contention advanced by the learned counsel for the appellant as regards the genuineness of Ext.A1 lease deed is also liable to be rejected.

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The next contention advanced by the learned counsel for the appellant is that though the appellant claimed the benefit of Section 106 of the Land Reforms Act, the courts below neither framed an issue regarding the same nor considered the said case on merits. According to the learned counsel, since the courts below have not framed an issue regarding the case set up by the defendant for the benefit of Section 106 of the Land Reforms Act, he could not adduce evidence in support of the said case for want of an issue framed for the said purpose. The written statement filed by the defendant in the case has been read before me by the learned counsel for the appellant. There is no whisper in the written statement about the claim, if any, of the defendant for the benefit of Section 106 of the Land Reforms Act. The learned counsel for the appellant pointed out that though Section 106 of the Land Reforms Act is not specifically referred to in the

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written statement, the ingredients of Section 106 have been pleaded by the defendant and as such, it was obligatory for the court to frame an issue concerning the benefit which the defendant is entitled to under Section 106 of the Land Reforms Act. I do not agree. In order to claim the benefit of Section 106 of the Land Reforms Act, the land in question must have been leased out for commercial or industrial purpose and the lessee must have constructed building therein for such commercial or industrial purpose on or before 20^th May, 1967. True, there is a vague pleading in the written statement that the land in which the building sought to be evicted is situated has been obtained by the father of the defendant by way of an oral lease from the mother of the plaintiff on 20.4.1960 and that the building has been constructed by the father of the defendant thereafter in the property. As far as Section 106 is concerned, the date of construction of the building is very crucial. There is no pleading in the written statement as to the time on which the building situated in the property has been constructed. In the absence of any pleading as to the time of construction of the

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building in the property, it cannot be said that the ingredients of Section 106 have been pleaded by the defendant. As such, I am unable to find fault with the courts below for having not framed an issue concerning the benefit, if any, of the defendant under Section 106 of the Land Reforms Act.

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In the circumstances, I do not find any merit in the second appeal and the same is, accordingly, dismissed. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Gopalakrishnan Nair v. R.Keralavarma

Case brief

What is this about?

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Gopalakrishnan Nair v. R.Keralavarma

Case brief

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