Kerala High Court
Kunju Sankaran Achary Babu Achary vs Ameen Pillai Hassankani Rowther
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939
SA.No. 564 of 2002 (A)
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AGAINST THE DECREE & JUDGMENT DATED 21.12.2001 IN AS 14/1995 of SUB
COURT,KOTTARAKKARA
AGAINST THE DECREE & JUDGMENT DATED 26.6.1991 IN OS 273/1991 of
MUNSIFF COURT, KOTTARAKKARA
APPELLANT/APPELLANT/PLAINTIFF:
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KUNJU SANKARAN ACHARY BABU ACHARY,
SHEEJA SADANAM, CHIRAVOOR MURI,
CHITHARA VILLAGE, KOTTARAKKARA TALUK.
BY ADVS.SRI.R.VENUGOPAL
SRI.R.SREEHARI
SRI.SACHIN VYAS
SRI.P.B.KRISHNAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. AMEEN PILLAI HASSANKANI ROWTHER
AMEEN MANZIL, KIZHAKKUMBHAGOM,
CHITHARA VILLAGE, KOTTARAKKARA TALUK.
2. HASSANKANI RAWTHER HUSSAIN, DO. DO.
3. HASSANKANI RAWTHER IQBAL, DO.DO.
R1 BY ADV. SRI.ALEXANDER GEORGE
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON
19-09-2017, ALONG WITH SA. 543/2002, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
K.RAMAKRISHNAN, J.
...........................................
S.A.No.564 of 2002
&
S.A.No.543 of 2002
............................................
Dated this the 19th day of September, 2017
JUDGMENT
The plaintiff in O.S.No.273/1991 on the file of the Sub Court, Kottarakkara is the appellant in S.A.No.564/2002. The defendant in OS.No.538/1991 on the file of the same court is the appellant in S.A.No.543/2002.
2. O.S.No.273/1991 was filed by the plaintiff in that case for injunction restraining the defendants therein from forcibly evicting him from the plaint schedule building or interfering with peaceful functioning of the unit in the property with following allegations:
The plaintiff with an intention to start a furniture manufacturing and sales unit obtained a loan from the Indian Bank, Chithara Branch. The defendant was having immovable property in Sy.No.662/1A/132 of Chithara village by the side of Parippally-Madathra road and on the request of the plaintiff, he had agreed to lease 3 cents of land to enable him to construct a semi permanent building for conducting the business whereby the plaint A schedule property was leased to him on a monthly rent of Rs.100/- for three years for which an agreement has been entered into between them on 26.11.1987. Thereafter he had constructed S.A.No.564 of 2002 & S.A.No.543 of 2002 2 a semi permanent building by spending Rs.20,000/- in plaint A schedule property which was shown plaint B schedule and he obtained S.S.I registration for conducting an industry by name Viswakarma Wood Industries. As per the agreement executed by him with the bank, he had to repay the loan in 36 installments. He invested huge money and obtained a permanent registration from the Industries Centre, Kollam. Though the term of the agreement expired on 26.11.1990, the first defendant had acquiesced his continuance in the plaint schedule property and no demand was made for eviction and he was even now conducting business there. While so, the defendants with ulterior motive for getting possession of plaint A and B schedule properties, threatened him on 23.6.1991 that they would dump lorry loads of granite stones in front of the business site in case he did not leave the premises within two days. He apprehended that they are likely to forcibly evicting him from the property. He required at least three more years for the purpose of discharging his liabilities. So he prayed for an injunction restraining the defendants from obstructing the plaintiff's smooth conduct of the business in the plaint schedule properties for a further period of three years and committing any act of waste therein and also forcibly evicting him from the property.
S.A.No.564 of 2002 & S.A.No.543 of 2002 3
3. Defendants 1 to 3 entered appearance, but the first defendant alone filed written statement contending as follows:
The suit is not maintainable. The allegation that 3 cents of land was rented out for the purpose of construction of the building and he constructed the building etc is not correct. In fact, the building with No.9/71 of Chithara panchayat was taken on rent by the plaintiff from him on 26.11.1987 on a monthly rent of Rs.100/- and he had paid rent only upto 27.11.1988 and thereafter committed default in payment of rent. He had also caused damage to the building. On account of the conduct of the business, nuisance has been caused to the members of his family and so he sent a notice asking him to surrender possession of the building and since he did not surrender the building, he filed OS.No.538/1991 for evicting him from the plaint schedule building and that suit is pending. In fact, the suit was filed anticipating some legal action by the first defendant for evicting him from the building that such a suit has been filed. He had further stated that he was not aware of the transaction between the plaintiff and the Bank. The allegation that he paid rent upto May, 1991 is not correct. It is also not correct that the rental arrangement was renewed by the act of the plaintiff. The allegation that he threatened him on 23.6.1991 stating that he would dump rubbles S.A.No.564 of 2002 & S.A.No.543 of 2002 4 and obstruct his business unless he vacated the premises within two days etc were not correct and hence denied. There is no cause of action for the plaintiff to file the suit. So he prayed for dismissal of the suit.
4. Since defendants 2 and 3 did not file written statement, they were set ex parte.
5. On the basis of the pleadings, following issues were framed by the court below for consideration:
i. Is the injunction prayed for allowable?
ii. Reliefs and costs.
6. The first defendant in OS.No.273/1991 is the plaintiff in OS.No.538/1991 which was filed for eviction of the plaintiff in OS.No.273/1991 from building No.9/71 of Chithara panchayat with the following allegations:
The building with No.9/71 of Chithara panchayat situated in the property comprised in Sy.No.662/1A/132 belongs to the plaintiff and the same was leased out to the defendant on a monthly rent of Rs.100/- for a period of three years. He had paid rent only for one year and thereafter committed default. So he asked him to surrender vacant possession of the building with arrears of rent. But without heeding for the request,he filed OS.No.273/1991 against him and others for injunction and obtained a temporary S.A.No.564 of 2002 & S.A.No.543 of 2002 5 injunction order. So a lawyer notice was issued to the defendants terminating the tenancy created and directing him to surrender vacant possession of the building. But he did not do the same, instead sent a reply with false allegations. Against the terms of the rental agreement, he was sawing timber in the plaint schedule property with a saw even during night times causing nuisance and annoyance to the students residing nearby and he is also permitting strangers to have their works in the building. On 27.12.1988 he borrowed a sum of Rs.2,000/- from him promissing that he will repay the amount. But though demand was made, he did not repay the amount and he was liable to replay the same along with arrears of rent from 27.11.1988 at the rate of Rs.100/-
together with interest. Since the defendant did not vacate the premises, he filed the suit for evicting along with arrears of rent and recovery of Rs.2,000/- said to have been paid as loan with interest and cost.
7. The defendant entered appearance and filed written statement contending that the suit is not maintainable. The allegation that the building was let out to him is not correct. In fact, 3 cents of property comprised in Sy.No.662/1A/132 was leased out to him on ground rent. An agreement was executed on 26.11.1987 with respect of the ground rent arrangement. S.A.No.564 of 2002 & S.A.No.543 of 2002 6 He availed a loan of Rs.35,000/- from the Indian Bank, Chithara branch for conducting an industry by name Viswakarma Wood Industries. When he approached the Indian Bank for loan, he was asked to find out a site for starting a unit and so he approached the plaintiff for that purpose and thereby he had agreed to lease out three cents of land on a ground rent of Rs.100/- per month for a period of three years. Then the Bank insisted for a building for starting an industrial unit. So he constructed a semi permanent building in the property and it is thereafter that the loan was sanctioned to him. He installed sawing machine, leveling machine etc in the building from the very inception of starting of the unit. He has to repay the loan in 60 monthly installments. Even though the unit was established, he could start functioning of the unit only after some time and thereafter he obtained SSI registration only on 21.1.1989. He was paying rent regularly to the plaintiff with much difficulty. He was aware of the fact that the unit could be functioned profitably only after repayment of the loan, for which he required further three years. So he had permitted him to continue the unit in the premises even after the expiry of the period mentioned in the original lease deed. Till he has filed OS.No.273/1991, the plaintiff never raised any contention stating that the rent was in arrears. The allegation that rent S.A.No.564 of 2002 & S.A.No.543 of 2002 7 from 27.11.1988 was in arrears is not correct. He is depositing Rs.2,000/- in court being the rent from March 1991 to December, 1992. When he offered the rent for the month of May, 1991, he refused to receive the same. Similarly when he offered the rent for the month of May and June, he did not receive the same and informed him that he should stop and shift the unit. When he informed his difficulty, he threatened that he would dump rubbles in front of the unit and caused hindrance to the function of the unit. That prompted him to file OS.No.273/1991 and obtained temporary injunction. The allegation was that the building was constructed by the plaintiff and the defendant attempted to cause damage to the building and permitted strangers to work etc is not correct. It is also false to say that he borrowed Rs.25,000/- from him during February, 1988. It is true that a notice has been issued terminating the tenancy of the building, for which he sent a reply showing the correct facts. Since due to low voltage, no work could be conducted in the unit during night. So he was operating the unit by using a small cutting machine, which would not cause nuisance as alleged. He had not received any amount as loan and the rent fell due on account of the act of the plaintiff and so he is not liable to pay interest and prayed for dismissal of the suit.
S.A.No.564 of 2002 & S.A.No.543 of 2002 8
8. On the basis of the pleadings, following issues were framed by the trial court for consideration:
i. Is the plaintiff entitled to recover plaint schedule property from the defendant?
ii. Is the plaintiff is entitled to recover arrears of rent? iii. Reliefs and costs?
Additional Issue No.4. Is the defendants borrowed Rs.2,000/- from the plaintiff on 27.12.1988 as alleged in the plaint?
9. As per order in IA.No.1207/1994 in OS.No.273/1991 joint trial was allowed and evidence was recorded in OS.No.538/1991 treating that as a leading case. The plaintiff in OS.No.538/1991 was examined as PW1 and Ext.A1 was marked on his side. The defendant in that case examined as DW1 and Exts.B1 to B5 were marked on his side. After considering the evidence on record, the trial court found that the agreement produced by the defendant cannot be accepted in evidence as it is inadmissible in evidence due to want of registration and it cannot be relied on for any purpose and also found that the defendant has failed to prove that he had constructed the building as claimed by him and on the basis of certain admissions made by him that the building assessment stands in the name of the plaintiff and the building tax was paid in the name of the plaintiff, the court below came to S.A.No.564 of 2002 & S.A.No.543 of 2002 9 the conclusion that the plaintiff is the owner of the building and the case of the plaintiff is more probable and granted decree for eviction. But the claim for arrears of rent and Rs.2,000/- said to have been borrowed were rejected by the trial court. Since the suit, OS.No.538/1991 was decreed, the court below dismissed OS.No.273/1991.
10. Dissatisfied with the dismissal of the suit OS.No.273/1991, the plaintiff in that case filed AS.No.14/1995 before Sub Court, Kottarakkara and against the decree and judgment in OS.No.538/1991 he had filed AS.No.13/1995 before the same court and the plaintiff in OS.No.538/1991 filed cross objection in AS.No.13/1995 against the rejection of the claim of arrears of rent and the amount of Rs.2,000/- said to have been borrowed. The Sub Judge by a common judgment concurred with the finding of the court below that the defendant had failed to prove the construction of the building and the document produced by the defendant cannot be admitted in evidence and it cannot be used for proving the purpose for which it has been leased out for want of registration and confirmed the decree for eviction and dismissal of the suit in OS.No.273/1991 and also dismissed the claim of the plaintiff in respect of Rs.2,000/- said to have been advanced as loan, but allowed the cross objection in S.A.No.564 of 2002 & S.A.No.543 of 2002 10 part and directed the defendant to pay the arrears of rent from 27.11.1988 together with interest and dismissed the appeals filed by the appellant herein and allowed the cross objection in part. Dissatisfied with the same, the above second appeals have been field by the appellant.
11. While admitting the appeals, this Court has accepted the common substantial question of law raised in the appeal memorandum as the substantial questions of law arise for consideration which reads as follows:
i. Whether on facts and circumstances of the case is not the document executed between the parties evidencing the lease is a necessary document?
ii. Is not the document of lease admissible in evidence? iii. Is not the appellant entitled to continue the premises since there is no valid notice?
iv. Is not the appellant entitled to fixity of tenure under section 106 of the Transfer of Property Act?
12. Heard Sri.P.B.Krishnan, learned counsel appearing for the appellant and Sri. Alexander George, learned counsel appearing for the respondents.
13. Learned counsel appearing for the appellant submitted that the courts below were not justified in not marking the lease S.A.No.564 of 2002 & S.A.No.543 of 2002 11 deed produced by the defendant even for the purpose of proving the collateral purpose for which there is no restriction though the document was not registered in view of proviso to section 49 of the Registration Act. He had also argued that the plaintiff had admitted in his evidence regarding the lease of the land for the purpose of construction of a shed. But his case was that the building was not constructed by him. The building in existence was given to him on rent. He had not produced any evidence to prove that fact. The burden is on the plaintiff to prove the lease set up him and in the absence of proof of such lease, he is not entitled to get relief of eviction of the building without seeking for recovery of land. So according to him, the courts below were not justified in decreeing the suit OS.No.538/1991 and dismissing the suit OS.No.273/1991.
14. On the other hand, learned counsel appearing for the respondents submitted that the courts below were perfectly justified in not marking the lease deed as it is an unregistered document and the document requires registration as the lease claimed is for more than three years. Further, the purpose for which the lease was granted is the main clause and that cannot be treated as a collateral purpose and as such, the courts below were justified in marking the document. Further, there is no S.A.No.564 of 2002 & S.A.No.543 of 2002 12 document produced by the defendant to prove that he had constructed the building. But, on the other hand, his own evidence will go to show that the building tax assessment stood in the name of the plaintiff and the tax was paid in his name. That shows that the respondent is the owner of the shop and his case is more probable and as such, the courts below were perfectly justified in allowing the suit filed by him and dismissing the suit filed by the appellant.
15. The appellant filed IA.No.564/2017 for appointment of an Advocate Commission and also filed IA.No.563/2017 to receive additional documents which were dismissed by this Court by separate orders. Since the appeals were filed against the common judgment of the court below on the basis of common evidence, this Court is disposing of both the appeals by a common judgment.
16. For the purpose of convenience, this Court is referring the status of the parties as mentioned in OS.No.538/1991 in the lower court as the dispute is between those two persons alone. The case of the plaintiff in OS.No.538/1991 was that the building with No.9/71 of Chithara panchayat was let out to the defendant on 26.11.1987 for a monthly rent of Rs.100/- and he had paid rent only upto 27.11.1988 and thereafter the rent was in arrears. S.A.No.564 of 2002 & S.A.No.543 of 2002 13 Further when he demanded the rent and also wanted him to shift the business to some other place, he filed OS.No.273/1991 with false allegations. So he sent a notice terminating tenancy and then filed the suit for eviction with arrears of rent. He had also a case that during February, 1988, he had borrowed Rs.2,000/- which he had not paid which he is liable to pay with interest. So he filed the suit for eviction along with arrears of rent and also recovery of Rs.2,000/- paid as loan. The defendant in that case, who is the appellant herein filed a written statement contending that he obtained land of 3 cents on a monthly rent of Rs.100/- for a period of three years for the purpose of starting a furniture manufacturing unit and when he approached the bank for loan, they wanted a land and also a building to be constructed. So he obtained the land from the plaintiff and constructed a semi permanent building and started the unit. On 26.3.1991 when the plaintiff along with his children approached and wanted him to shift he did not heed for the demand and wanted some more time and he threatened him that he would make him to leave the building by stacking rubbles in the property. That prompted him to file OS.No.273/1991 and obtained injunction against the plaintiff. It is thereafter he sent the notice. According to him, the rent up to April 1991 was paid and when rent for May was tendered, it was S.A.No.564 of 2002 & S.A.No.543 of 2002 14 not received and again when he tendered rent for May and June, that was also refused and thereafter that it happened to fall in arrears which he deposited before court. He had also contended that he is entitled to get the benefit under section 106 of the Kerala Land Reforms Act and he prayed for dismissal of the suit. He filed OS.No.273/1991 making the same contentions apprehending threat from the plaintiff in OS.No.538/1991 and his children that they would evict him from the building forcibly and caused obstruction to the business and the first defendant, who is the plaintiff in OS.538/1991 field written statement reiterating his claim in plaint OS.No.538/1991.
17. The alleged lease deed was not produced by the plaintiff. It is true that the appellant had produced the alleged lease deed. But it was not marked in evidence as the lease was for a period of more than one year which is required to be registered under section 17 of the Registration Act and also under section 107 of the Transfer of Property Act and in view of the bar under section 49 of the Registration Act, the same could not be admitted in evidence. But the case of the counsel for the appellant was that though it is not admissible in evidence but it can be relied on by the court for proving the collateral purpose for which he had relied on the decisions reported in Samir Mukherjee v. Davinder S.A.No.564 of 2002 & S.A.No.543 of 2002 15 K. Bajaj and others (2001 (5) SCC 259), Paul v. Saleena (2004 (1) KLT 924), Aniyan T.V. and another v. T.K. Raveendran (2012 (4) KHC 811), Anthony v. K.C. Ittoop & Sons & Others (2000 (6) SCC 394), Satish Chand Makhan and Others v. Govardhan Das Byas and others (1984 (1) SCC 369), Hari Lal v. Amrik Singh and another (AIR 1978 Allahad 292), Sulaikha Beevi v. Mathew (2001 (1) KLT 360) and K.B.Saha and sons Pvt.Ltd v. Development Consultant Limited (2008 (8) SCC
564).
18. I will consider the decisions one by one. In the decision reported in Samir Mukherjee v. Davinder K. Bajaj and others (2001 (5) SCC 259), it has been held that "the lease in respect of immovable property from year to year in order to be valid, cannot be created orally and must be embodied in a registered document. If the lease was for manufacturing purposes it must be deemed to be a lease from year to year under section 106 and unless it is registered, it cannot be admitted in evidence. In the absence of registration, it can only be treated as a month to month lease. So that dictum is not really applicable to the facts of this case".
19. In the decision reported in Paul v. Saleena (2004 (1) KLT 924) it has been held that:
S.A.No.564 of 2002
& S.A.No.543 of 2002 16 "An unregistered document cannot be used for the purpose of establishing that that document created or declared or assigned or limited or extinguished a right to immovable property. Period of lease is integral part of the agreement and it cannot be treated as collateral one. Unregistered lease deeds cannot be pressed into service to create, declare, assign limit or extinguish any right, title or interest in or to the property comprised in the document. The create only month to month tenancy and only if the lease is registered under the Registration Act it would create transfer of right to enjoy the immovable property for a specific term exceeding one year".
20. That was a case where the lease was created for a period of 15 years and the tenant wanted to contend that he is entitled to get protection under section 11(9) of the Kerala Building (Lease and Rent Control) Act, 1965 as he cannot be evicted within that period. But since the period of lease is also integral part of the lease deed and main terms of condition, since it is an unregistered document it was held that it cannot be used for the purpose of proving that aspect and rejected that contention.
21. In the decision reported in Aniyan T.V. and another v. T.K. Raveendran (2012 (4) KHC 811), a Division Bench of this Court has considered the same question whether an unregistered lease deed can be used for the purpose of determining the S.A.No.564 of 2002 & S.A.No.543 of 2002 17 terms of the lease and this Court has, relying on several decisions of Apex Court on this aspect, come to the conclusion that an unregistered lease deed cannot be pressed into service to create, declare, assign, limit or extinguish any right title or interest in or to the property comprised in the document and it cannot be used for relying on for the purpose of ascertaining the terms of the lease as the period of lease is an integral part of the lease deed and it cannot be treated as collateral purpose for which it can be relying on invoking the proviso to section 49 of the Registration Act.
22. In the decision reported in Anthony v. K.C. Ittoop & Sons & Others (2000 (6)SCC 394) it has been held that ""Notwithstanding that the landlord and tenant had executed only an unregistered lease deed for a period of exceeding one year, the relationship between them held was that of landlord and the tenant and to that extent the lease deed can be relied on and the petition for eviction under the provisions of the Kerala Building (Lease and Rent Control) Act is maintainable on the basis of the allegation that there is a landlord tenant relationship in spite of the fact that the lease deed was not registered".
23. That was a case where there was no dispute regarding the fact that the building was entrusted and he was in possession S.A.No.564 of 2002 & S.A.No.543 of 2002 18 of the building as a tenant. So under such circumstances, even if the lease deed is unregistered, the relationship between the parties can be inferred and for that purpose, the document can be relied on. So that is not as such applicable to the facts of this case.
24. In the decision reported Satish Chand Makhan and Others v. Govardhan Das Byas and others (1984 (1) SCC 369), it has been held that:
"The unregistered draft lease agreement was ineffectual to create a valid lease for a renewed term of 9 years for want of registration as required under section 17(1)(d) of the Registration Act. That was also inadmissible in evidence to prove the transaction of lease. That was admissible under proviso to section 49 of the Registration Act only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso was not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning".
25. In the decision reported in Hari Lal v. Amrik Singh and another (AIR 1978 Allahad 292) it has been that:
"An unregistered document can be used for collateral purpose regarding an antecedent title, the nature and character of possession, an admission or an acknowledgment, relationship of parties and their state of mind may be some of the instances of collateral purpose for which the document S.A.No.564 of 2002 & S.A.No.543 of 2002 19 requiring registration may be looked into even though it is unregistered".
26. But that was not the purport of the dictum laid down in the decisions of the Apex Court on this aspect. If that is relating to the terms of the lease or the purpose of the lease itself has been inferred from the document itself, which is an integral part of the document, then that cannot be treated as collateral purpose and the document cannot be used for that purpose.
27. In the decision reported in Sulaikha Beevi v. Mathew (2001 (1) KLT 360), it has been held that "an unregistered lease agreement though void can be looked into for the purpose of finding out the nature of the agreement executed between the parties". But in the same decision it has been held that it cannot be looked into for the purpose of showing that the lease is created by this document.
28. In the decision reported in K.B.Saha and sons Pvt.Ltd v. Development Consultant Limited (2008 (8) SCC 564), it has been held that though a document requires registration and if such document is not registered and it cannot be admitted in evidence, but it can be used for any collateral transaction for the purposes provided under proviso to section 49 of the Registration Act. The collateral transaction must be independent or divisible from the transaction which requires registration. It must not by S.A.No.564 of 2002 & S.A.No.543 of 2002 20 itself be registrable, use of an unregistered document to prove an important clause thereof would not be a use for collateral purpose. That was a case where a lease in respect of a building was granted for more than one year and there was a clause as clause 9 which specified that the tenanted premises must be used and occupied by a particular officer of the company and the company intended to use the premises for occupation of any other officer it would seek written permission of the landlord and landlord had option to agree or disagree. When the tenant had inducted another person other than the officer mentioned in the document, the suit filed by the landlord for violation of condition on the basis of the unregistered document it was held that it cannot be taken as a collateral purpose as it is integral part of the lease agreement and that cannot be used for proving that case as collateral purpose.
29. So from the dictum laid down in the above decisions, it is clear that a document which is required to be registered cannot be admitted in evidence and cannot be used for proving the transaction on the basis of that document. But it can be used for proving collateral purpose as provided under proviso to section 49 of the Registration Act. But the collateral purpose must be independent of the transaction and if it is integral part of the S.A.No.564 of 2002 & S.A.No.543 of 2002 21 transaction itself which itself is required Registration, then it cannot be used as collateral purpose and unregistered document cannot be used for that purpose.
30. In this case, admittedly the document of lease said to have been executed between the plaintiff and defendant on 26.11.1987 was for a period of three years and it was an unregistered document. So the courts below were perfectly justified in not allowing the appellant to mark the document in evidence. Then the question is whether the document can be used for any collateral purpose. The collateral purpose for which the defendant wanted to rely on is that the relationship between the parties in respect of land and not the building. But it is a term of the document and it cannot be treated as an independent transaction and as such, the important term of the document cannot be treated as a collateral purpose, for which the document can be admitted in evidence and relied on by the court. So under such circumstances, the courts below were perfectly justified in not marking the document and not relying on the document for the purpose for which the appellant wanted to use the same to prove his case. So the questions of law raised by the appellant on this aspect are answered against him.
31. As regards the case oaf the plaintiff is concerned, his S.A.No.564 of 2002 & S.A.No.543 of 2002 22 case was that the building was given on rent on a monthly rent of Rs.100/- and he paid rent only for one year and thereafter he had not paid the rent. The case of the defendant was that he had constructed the building on the basis of the lease agreement and he is the owner of the building. So the burden is on the defendant to prove that he constructed the building and he is the owner of the building. Except the oral testimony of DW1, there is no other evidence to prove that he had constructed the building. Though he had a case that he borrowed money by pledging the ornaments of his sister, he had not produced any document to prove that fact. On the other hand, he had admitted that even when he filed an application for loan, he had mentioned the building number, in which the owner of the same was shown the plaintiff. He had also admitted that in the local authorities records the name of the plaintiff was shown as the owner of the building. There is no dispute regarding the fact that the number of the building is 9/71 which has been later renumbered as 9/75. He had also admitted that the property tax was paid in the name of the plaintiff as owner of the property. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the defendant has failed to prove that he had constructed the building on the basis of the lease and as such, the defendant is not S.A.No.564 of 2002 & S.A.No.543 of 2002 23 the owner of the building.
32. It is true that the plaintiff had stated that there was an agreement between the parties regarding 3 cents of land and agreement was entered for the purpose of enabling the defendant to construct a shed, but he had categorically stated that he had not constructed the shed as agreed. On the other hand, the building then existed there was let out to him and he is conducting the business there. In the absence of any evidence adduced on the side of the defendant to prove even by probabilities that he had constructed the building, it can only be presumed that the plaintiff is the owner of the building and the case of the plaintiff is more probable that the building was let out to him on a monthly rent of Rs.100/- especially when the document which the defendant wanted to rely on is an unregistered document and there is no evidence to show that it has been acted upon as well. There is an admission regarding the nature of relationship between the plaintiff and the defendant that they are landlord and tenant and the rate of rent also is not disputed. So under such circumstances, the courts below were perfectly justified in relying on the evidence of PW1 and coming to the conclusion that the building was rented out to the defendant on a monthly rent of Rs.100/- and the case of the defendant is not probable and rightly S.A.No.564 of 2002 & S.A.No.543 of 2002 24 held that the plaintiff has proved his case.
33. As regards the contention of the defendant that he is entitled to get the benefit under section 106 of the Land Reforms Act, there is no evidence adduced on his side to prove this fact. Further there is no evidence to show that the building was constructed before the cut off date provided under section 106 of the Kerala Land Reforms Act namely before 20.1.1967. So under such circumstances, the courts below were perfectly justified in holding that the defendant is not entitled to get the benefit under section 106 of the Land Reforms Act and rightly rejected that contention.
34. Though the defendant had a case that notice sent is not proper, he has not stated as to how this is not proper. If the transaction is by an unregistered document or on oral basis, then it can only be treated as a month to month tenancy and notice need be issued by terminating the tenancy by giving 15 days to surrender the building. That was done by the plaintiff by issuing Ext.B1 notice, receipt of which was admitted by the defendant and he had sent Ext.B3 reply as well. So under such circumstances the courts below were perfectly justified in holding that the notice sent is proper and the defendant is liable to surrender the building and rightly granted a decree of eviction of the building especially S.A.No.564 of 2002 & S.A.No.543 of 2002 25 when the place where the building situate is not a place covered by the provisions of the Kerala Building (Lease and Rent Control) Act.
35. The case of the plaintiff was that the rent only up to 27.11.1988 was paid . Thereafter the rent was kept in arrears. The trial court rejected that contention and denied relief on that aspect. The appellate court had reversed that finding and held that the defendant is liable to pay rent from 27.11.1988 also with interest at 6% interest. When the defendant pleaded discharge, it is for him to prove the same. That was not done in this case. Further in the written statement filed in OS.No.273/1991 itself, the plaintiff in this case who is the first defendant in that case raised such a contention. In the notice also the demand was made for arrears of rent from 27.11.1988. So under circumstances, the appellate court was perfectly justified in directing the appellant who is the defendant int that case to pay arrears of rent at the rate of Rs.100/- per month from 27.11.1988 with 6% interest till deposit after deducting the amount of rent already paid by giving credit and also ascertaining the amount payable thereafter. So this Court do not find any reason to interfere with the finding of the first appellate court on this aspect.
36. Since the court below had decreed the suit S.A.No.564 of 2002 & S.A.No.543 of 2002 26 OS.No.538/1991 the dictum aid down in the decision reported in Mohammed v. Unni (1999 (1) KT 756) is not applicable to the facts of this case where it has been held that the landlord can resume possession of the tenanted property even when the tenancy expires by efflux of time only by due process of law, as the landlord has already initiated proceedings after issuing proper notice and that was also tried along with the case and that was decreed by the court below. So under such circumstances, the courts below were perfectly justified in dismissing OS.No.273/1991 and that concurrent finding do not call for any interference. The questions of law raised by the appellant have been answered against him accordingly. So both the appeals lack merits and the same are liable to be dismissed.
In the result, both the appeals fail and the same are hereby dismissed. The decree and judgment passed by the trial court and modified by the first appellate court are hereby confirmed. Six months time is granted to the appellant to vacate the premises. Considering the circumstances of the case, parties are directed to bear their respective costs in the second appeals.
Sd/-
K.RAMAKRISHNAN, JUDGE.
/true copy/ P.S to Judge cl S.A.No.564 of 2002 & S.A.No.543 of 2002 27 K.RAMAKRISHNAN, J.
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S.A.No.564 of 2002
& S.A.No.543 of 2002 ................................
19th September, 2017 JUDGMENT