Allowed

A.P.Kunhikannan v. U.P.Surndran

Kerala HC11 Aug 2022RSA/1161/2008

Case brief

AI extract

What is this about?

In a regular second appeal regarding recovery of possession, the High Court held that the burden of proving tenancy lies on the defendant when the plaintiff's title is established. Since the defendant failed to produce evidence of lease deposit or rent payments, the appeal was allowed, and the trial court's decree for recovery of possession was restored.

What did the court decide?

Regular Second Appeal allowed; decree and judgment of the first appellate court set aside; decree of the trial court restoring recovery of possession restored.

A.P.Kunhikannan Vs U.P.Surndran — Property and Title | Kerala HC (2022)

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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 SATHISH NINAN

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THURSDAY, THE 11^TH DAY OF AUGUST 2022 / 20TH SRAVANA, 1944

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RSA NO.1161 OF 2008

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AGAINST THE JUDGMENT IN AS 110/2004 OF II ADDITIONAL SUB COURT,KOZHIKODE OS 406/2001 OF ADDITIONAL MUNSIFF COURT-I, KOZHIKODE.

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APPELLANT/RESPONDENT/PLAINTIFF:

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A.P.KUNHIKANNAN, AGED 76 YEARS, S/O.KRISHNAN, NO.10, ASHOK AVENUE, KADAMBACKAM, CHENNAI.

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BY ADV SRI.V.R.KESAVA KAIMAL

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RESPONDENT/APPELLANT/DEFENDANT:

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U.P.SURENDRAN, AGED 40 YEARS, S/O.U.P.KUNHIKANNAN, NO.2/1844, 'KAVYA',, KANAL ROAD, ERANHIPALAM, KACHERI AMSOM, DESOM, KOZHIKODE TALUK.

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BY ADVS. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.S.A. No.1161 of 2008

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= = = = = = = = = = = = = = = = = = Dated this the 11^th day of August, 2022

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J U D G M E N T

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The plaintiff in a suit for mandatory injunction,

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with an alternate prayer for recovery of possession and incidental reliefs, is the appellant. The suit was partly decreed by the trial court. The decree was set aside and the suit was dismissed by the first appellate court.

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The plaint schedule property is a building. The

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plaint schedule belongs to the plaintiff as per Ext.A1 assignment deed of the year 1989. The defendant is the nephew of the plaintiff. The defendant is a partner with the plaintiff in a business. The plaintiff is away in Chennai. In the year 1996, in connection with the marriage of the defendant, the plaintiff permitted him to reside in the plaint schedule property. It was assured that the defendant would find an alternate place of residence. The relationship between the parties

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R.S.A. No.1161 of 2008

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-: 2 :-

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became strained whereupon the present suit is filed for

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a mandatory injunction to vacate the building, with an alternate prayer for recovery of possession on the strength of the plaintiff's title. There was a prayer for recovery of damages for use and occupation and also for prohibitory injunction not to trespass into the plaint schedule.

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The defendant contended that, he is occupying

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the building as a tenant under the plaintiff. It was contended that at the time of grant of lease, in November 1990, he paid an amount of 5,000/- towards advance and has been paying monthly rent of 450/-, which was subsequently enhanced to ` 750/-. The defendant being a building tenant, he could not be evicted by virtue of the present suit, it was contended.

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The trial court found that there is no evidence to prove the alleged lease. The quantum of damages for use and occupation claimed was found to be reasonable. Accordingly, a decree was granted for recovery of

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R.S.A. No.1161 of 2008 -: 3 :-

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possession and damages for use and occupation. On

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appeal, the first appellate court found that the defendant being in exclusive possession of the plaint schedule, in the absence of any evidence on the part of the plaintiff to prove that the occupation is permissive, the arrangement is a lease. It was held that

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the defendant could be evicted only under the Kerala Building (Lease and Rent control) Act, 1965. The suit was accordingly dismissed. It is aggrieved thereby that the Regular Second Appeal has been filed.

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Heard Sri.B.R.Kesava Kaimal on behalf of the appellant-plaintiff and Sri.K.P.Balasubramanian on behalf of the respondent-defendant on the following substantial questions of law:-

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(1) Did not the first appellate court err in interfering

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with the decree for recovery of possession on the strength of

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title on the ground that the plaintiff failed to prove that the

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defendant is in possession as a licensee ?

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R.S.A. No.1161 of 2008

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-: 4 :-

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(2) The plaintiff having proved his title over the plaint

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schedule property, is not the burden of proof on the defendant

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to defend his possession by proving his plea of tenancy ?

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Ext.A1 is the document of title of the plaintiff

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in respect of the plaint schedule property. The title of the plaintiff over the plaint schedule property is not in dispute. Though the plaintiff contended that on termination of the licence he is entitled to get a decree for mandatory injunction, he had, in the alternative, sued for recovery of possession of the plaint schedule building on the strength of his title. When the suit is one for recovery on the strength of title, it is for the defendant to establish that he is in possession as a tenant as claimed by him, or that he has a better title or that he has prescribed title by adverse possession. The title of the plaintiff having been proved or rather admitted, it was for the defendant to contend and prove as to why the possession is not

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R.S.A. No.1161 of 2008

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-: 5 :-

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liable to be recovered from him. The defendant has urged

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a plea of tenancy and that he is liable to be evicted only under the Kerala Building (Lease and Rent Control) Act, 1965. Under such circumstances, the burden was entirely on the defendant to prove that he was a tenant of the plaint schedule building. The first appellate court overlooked the fact that the suit is one for recovery of possession on title and non-suited the plaintiff for having not proved that defendant is a licencee. Recovery having been sought on title, the proof of licence arrangement was beside the issue. It is for the defendant to prove his plea of tenancy. Substantial questions of law are answered accordingly.

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The defendant has miserably failed to prove the

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plea of tenancy. But for the oral evidence of the defendant, there is absolutely no evidence to prove his plea of tenancy. The defendant claimed that, at the time

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R.S.A. No.1161 of 2008

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-: 6 :-

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of taking the premises on lease he had paid advance. It is further claimed that he is paying the monthly rent. However, there is no scrap of paper or evidence of any nature to prove the payment of deposit or the monthly rent as claimed by him. Here the relationship between the parties is of much significance. The defendant is none other than the nephew of the plaintiff. The plaintiff had business relationship with the defendant. Under such circumstances, the case of the plaintiff that

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the defendant was permitted to occupy the plaint schedule building in connection with his marriage, is only probable. At any rate, the defendant having failed to prove his plea of tenancy, and the plaintiff having established his title, necessarily the plaintiff is entitled for a decree for recovery of possession. No other contentions have been urged.

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R.S.A. No.1161 of 2008

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-: 7 :-

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Resultantly the Regular Second Appeal is allowed.

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The decree and judgment of the first appellate court is

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set aside and that of the trial court is restored. No

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costs.

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Sd/- SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

A.P.Kunhikannan v. U.P.Surndran

Case brief

What is this about?

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A.P.Kunhikannan v. U.P.Surndran

Case brief

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