Dismissed

Prathapachandran v. P. Saisikala

Kerala HC5 Feb 2024RSA/346/2020

Case brief

AI extract

What is this about?

This second appeal challenged a decree for recovery of possession. The court held that the agreement of tenancy was based on the connivance of the co-defendant who had no title, as the plaintiff and her husband lived separately. No legal tenancy was created.

What did the court decide?

Regular second appeal dismissed with cost of the plaintiff; interlocutory orders vacated and applications dismissed.

Prathapachandran Vs P. Saisikala — Contempt of Court | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

¶4

MONDAY, THE 5TH DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945

¶5

RSA NO. 346 OF 2020

¶6

AGAINST THE DECREE AND JUDGMENT DATED 27.02.2020 IN A.S.NO.39/2018 ON

¶7

THE FILES OF THE COURT OF THE SUB JUDGE, NEDUMANGAD AROSE FROM THE
DECREE AND JUDGMENT DATED 11.12.2017 IN O.S.NO.734/2014 ON THE FILES
OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD

¶8

APPELLANT/(1ST APPELLANT IN THE LOWER APPELLATE COURT AND 1ST
DEFENDANT IN THE TRIAL COURT:

¶9

PRATHAPACHANDRAN
AGED 58 YEARS,
S/O. THANKAPPAN,KAILAS,MARUTHANCODE,
IRUMBA,ARUVIKKARA,THIRUVANANTHAPURAM-695 564.
BY ADV S.SACHITHANANDA PAI

¶10

RESPONDENTS/(RESPONDENT AND 2ND APPELLANT IN LOWER APPELLATE COURT

¶11

AND PLAINTIFF AND 2ND DEFENDANT IN THE TRIAL COURT:

¶12

1 P. SAISIKALA AGED 59 YEARS,TC 42/1080(2) ILLAM, VALLAKKADAVU, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM-695 024.

¶13

2 RAVEENDRAN NAIR, AGED 68 YEARS,S/O.MADHAVAN PILLAI, KAILAS, MARUTHANCODE, IRUMBA, ARUVIKKARA, THIRUVANANTHAPURAM-695 564.

¶14

R1 BY ADVS.
SRI.V.SURESH
SRI.G.SUDHEER
SRI.R.HARIKRISHNAN

¶15

THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

R.S.A. No. 346 of 2020

¶17

¶18

JUDGMENT

¶19

Dated this the 5^th day of February, 2024

¶20

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.39 of 2018 dated 27.02.2020 on the files of the Court of the Sub Judge, Nedumangad arose from the decree and judgment in O.S. No.734 of 2014 dated 11.12.2017 on the files of the Additional Munsiff’s Court, Nedumangad. The appellant is the 1^st defendant and respondents are the plaintiff and 2^nd defendant in O.S. No.734 of 2014.

¶21

Heard the learned counsel for the appellant and the learned counsel appearing for the respondents, in detail. Perused the lower court records and the verdicts under challenge.

¶22

I shall refer the parties in this appeal with reference to their status before the trial court.

¶23

As per order dated 01.10.2020, my learned

¶24

R.S.A. No. 346 of 2020

¶25

¶26

predecessor admitted this appeal by formulating the following substantial questions of law:

¶27

a) Whether the courts below ought to have raised the issue regarding tenancy right of the appellant in the plaint schedule?

¶28

b) In the light of the admission of execution of the rental arrangement by the 2^nd defendant, whether the court below is right granting the decree of recovery of possession?

¶29

c) In the light of rental arrangement, whether proper remedy was to approach the Rent control court to redress the grievance, if any, of the plaintiff instead of the present suit for recovery of possession?

¶30

In this matter, asserting title over the plaint A schedule property, where plaint B schedule building is situated, by virtue of Sale Deed No.901/1990 of SRO, Karakulam, the plaintiff filed suit for recovery of possession of plaint B schedule building on the ground that at the connivance of the 2^nd defendant, who is none other than the husband of the plaintiff, the 1^st defendant trespassed upon plaint B schedule building and has been in occupation

¶31

R.S.A. No. 346 of 2020

¶32

¶33

of the same.

¶34

The 1^st defendant filed written statement and resisted the suit, mainly contending that he occupied the building after executing rent deed dated 20.04.2008 in favour of the 2^nd defendant for a monthly rent of Rs.1,500/and also paying an advance amount of Rs.3,00,000/-. Therefore, the 1^st defendant claimed his status as that of a tenant.

¶35

The 2^nd defendant also filed written statement contending that the plaintiff and the 2^nd defendant had been residing separately and the plaintiff had no possession over plaint A schedule property and plaint B schedule building from 2003 onwards, on the date when the plaintiff deserted the 2^nd defendant. The 2^nd defendant also raised contention that plaint A schedule property was purchased by him. He admitted the rent agreement executed by the 1^st defendant in his favour and also pointed out filing of divorce O.P. No.126/2011 on the files of the Family Court, Thiruvananthapuram and M.C. 21/2011 before the Judicial First Class Magistrate Court, Trivandrum

¶36

R.S.A. No. 346 of 2020

¶37

¶38

under the Domestic Violence Act, in between the plaintiff and the 2^nd defendant.

¶39

The trial court raised necessary issues and tried the matter. PWs 1 and 2 examined and Exts.A1 to A7 marked on the side of the plaintiff. DWs 1 to 4 examined and Ext.B1 marked on the side of the defendants. Ext.C1 series marked as court exhibits.

¶40

Finally the trial court decreed the suit as under:

¶41

“(1) The 1^st defendant shall vacate from the plaint B schedule building in plant A schedule property within one month from the date of decree allowing the plaintiff to recover possession of paint B schedule building. In the event of failure to do so, plaintiff is entitled to recover possession through the process of court.

¶42

(2) The defendants are restrained by a decree of permanent prohibitory injunction from committing waste inside the plaint B schedule building and from inducting strangers therein till the possession of the property is given to the plaintiff;

¶43

R.S.A. No. 346 of 2020

¶44

¶45

respective costs.”

¶46

10. Though appeal f i led challenging the decree and

¶47

judgment of the trial court vide A.S. No.77/2014, the Appellate Court dismissed the appeal and concurred the f i nding of the trial court.

¶48

11. The learned counsel for the 1 st defendant argued that the 1 st defendant is a tenant in the building on the strength of rent deed executed by the 1 st defendant in favour of the 2 nd defendant, who is the owner of plaint A and B schedule items. At the same time, the learned counsel conceded that the so called rental agreement not form part of the evidence adduced. According to him, the 1st defendant produced a photostat copy of the agreement, which was not accepted by the trial court.

¶49

12. According to the learned counsel for the 1 st defendant, the tenancy right was not decided by the trial court in a case where the 2 nd defendant admitted execution of the rent deed as contended by the 1 st defendant. He pressed the point that, since the 1 st defendant is a tenant in

¶50

R.S.A. No. 346 of 2020

¶51

¶52

the building, the remedy of the plaintif f was to approach the Rent Control Court to redress her grievances and as such the present suit is not maintainable.

¶53

13. Repelling this argument, the learned counsel for the plaintif f submitted that the 2 nd defendant has no manner of right over plaint A and B schedule items. It is submitted further that, since the plaintif f and 2 nd defendant had been residing separately for years and as per Ext.A3 judgment in O.P. No.126/2011 dated 26.09.2014 they were divorced. Taking note of the absence of the plaintif f in the plaint schedule items, the 2 nd defendant, who had no right over the same, at connivance of the 1 st defendant inducted him and accordingly as a trespasser the 1 st defendant has been occupying plaint B schedule building.

¶54

14. The learned counsel for the plaintif f would further submit that no tenancy created in between the plaintif f and the 1 st defendant and the so called tenancy was not proved, in any manner. Therefore, the rental agreement could not confer any right of tenancy as contended by the 1 st defendant. Accordingly, the trial court as well as the

¶55

R.S.A. No. 346 of 2020

¶56

¶57

Appellate Court rightly found the status of the 1 st defendant as a trespasser and granted decree for recovery of possession and prohibitory injunction.

¶58

15. While addressing these contentions, I am inclined to refer paragraph No.3 of the written statement f i led by the 1 st defendant in this case. Paragraph No.3 is extracted hereunder:

¶59

“3. The 3 rd paragraph of the plaint is partially true and hence denied. The 1 st defendant was a family friend of the petitioner and the second defendant and he is not a stranger to them and saying to as a stranger for the benefits of the case. The 1 st defendant had no knowledge about the family disputes of the petitioner but know that they are living seperately more than 9 years and know that a domestic violence case is pending before the JFMC-II Trivandrum. With regards to the family problem the plaintiff had left the 2 nd respondent and gone to her parental house. Since 20/04/2008 on wards 1 st defendant living in the plaint 'B' Schedule house which is situated in the plaint 'A' schedule property for monthly rent of Rs.

¶60

¶61

R.S.A. No. 346 of 2020

¶62

1500/- and as an advance amount of Rs. 3,00,000/- (Three Lakhs Only) since the date of the execution of the agreement 1 st defendant and his family leading a peaceful life in the 'B' schedule building.”

¶63

16. Going by paragraph No.3, the 1 st defendant would admit that the plaintif f and the 2 nd defendant had been living separately for more than nine years and the said written statement was f i led on 09.06.2015. In so far as the tenancy claimed by the 1 st defendant is concerned, the same is based on an agreement in between the 1 st defendant and the 2 nd defendant. In this case, as per Ext.A3 judgment in O.P. No.126/2011 and even as per the admission of the 1 st defendant in the written statement, the 1st defendant is aware of the fact that the plaintif f and 2 nd defendant had been living separately and in the year 2011 divorce petition also f i led due to dif f erence of opinion.

¶64

17. In order to trace out the date of dif f erence of opinion, the written statement fled by the 2 i nd defendant assumes signif i cance. In paragraph No.3 of the written statement, 2 nd defendant admitted that the plaintiff and

¶65

R.S.A. No. 346 of 2020

¶66

¶67

defendant are wife and husband and now living separate houses. The plaintiff had no possession over the 'A' schedule property and 'B' schedule building from June 2003 onwards. From that onwards the plaintiff deserted the 2 nd defendant and the plaintiff stayed at Eanchakkal, T.C. 42/1080(2) Vallakkadavu P.O, Muttathara Village, Thiruvananthapuram. The said property was purchased by the 2 nd defendant after collected money from his brother and thereafter sold his 10 Cents of property in Re-sy. No. 3379/2, Unfortunately the A schedule property was purchased in the name of plaintiff's wife. The 2 nd defendant had constructed the B schedule property with his own expenses. At the time of marriage the plaintiff had no other income or money and their parents had no capacity to maintain their daily life also.

¶68

18. So, the admitted case of the 2 nd defendant is that during June, 2003 the plaintif f deserted him and they had been living separately. If so, the 1 st defendant who admittedly claimed to be a family friend of the plaintif f and the 2 nd defendant could not say that he was not aware of

¶69

R.S.A. No. 346 of 2020

¶70

¶71

the fact that the plaintif f and 2 nd defendant had been residing separately from 2003 onwards. Therefore, the said contention is not believable.

¶72

19. It is discernible from the evidence that as per Ext.A1 sale deed No.901/1990, the plaintif f purchased the plaint schedule properties and she paid tax as per Ext.A2. Thus, nothing is available in evidence to disbelieve the title of the plaintif f over the plaint schedule items and no manner of right otherwise established by the 2 nd defendant over the same. Thus, the inference is that the 2 nd defendant who admittedly living separately from the plaintif f in the year 2003, deliberately inducted the 1 st defendant under the guise of a tenancy with ulterior motives and in fact no legal tenancy created and the status of the 1 st defendant is nothing but that of a trespasser.

¶73

20. Even though, the trial court did not raise a specif i c issue as to the right of the tenancy claimed by the 1st defendant, the trial court rightly raised an issue that “whether the 2 nd defendant has the right to execute the rental agreement in favour of the 1 st defendant” and found

¶74

R.S.A. No. 346 of 2020

¶75

¶76

in the negative. Therefore, the tenancy claimed at the instance of the 1 st defendant was rightly addressed by the trial court and the Appellate court. Therefore, the frst i substantial question of law answered holding that the tenancy claimed was addressed by the trial court as well as the Appellate Court and found in the negative.

¶77

21. Coming to the second substantial question of law, the 2 nd defendant who admittedly living separately from the plaintif f from 2003 onwards admitted execution of rent deed in favour of the 1 st defendant in the year 2008. Going by the admission to the ef f ect that the 2 nd defendant had been living separately from the plaintif f from 2003 onwards, it could not be held that in the year 2008, the 2 nd defendant has the right to execute a rent deed in favour of the 1 st defendant, in any manner. Therefore, the said arrangement of tenancy, even not available before the Court, could not give right of tenancy to the 1 st defendant, in any manner. Since no tenancy in between plaintif f and the 1 st defendant established, there is no reason to resort the remedy under the Rent Control Act and the third substantial question of

¶78

R.S.A. No. 346 of 2020

¶79

¶80

law answered holding that the plaintif f who did not part with the possession of the plaint schedule items with the 1 st defendant as a tenant and the specif i c case of the plaintif arraying the 1 st defendant as a trespasser at the connivance of the 2 nd defendant, the remedy of the plaintif is to f i le a suit for recovery of possession where the 1 st and 2nd defendants did not have any manner of right over the property. Thus, the concurrent verdicts of the trial court and the Appellate Court are perfectly in order and there is no reason to interfere with the same.

¶81

22. In the result, this regular second appeal is found to be meritless and is accordingly dismissed, with cost of the plaintif f .

¶82

All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.

Sd/-

A. BADHARUDEEN

JUDGE

Prathapachandran v. P. Saisikala

Case brief

What is this about?

What did the court decide?

Prathapachandran v. P. Saisikala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manicka Sachindranath, (Died) (Lrs Impleaded) Vs Sankunni,(Died) (Legal Heirs Sought to Be Impleaded)

Kunheedu, Vs Mymoona

Noony Joseph (Died) Shanty Noony Vs Noby Thomas Joseph

Jibin Vs State of Kerala

Muraleedharan Vs State of Kerala

R.Hareesh Babu, Vs Anju Hariharan