Kerala High Court
Yohannan Chacko vs Thomas Mathai on 31 July, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935
RSA.No. 754 of 2013 ()
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AGAINST THE JUDGMENT IN AS 191/2008 of
ADDL.DISTRICT COURT-I,MAVELIKKARA DATED 31-07-2012
AGAINST THE JUDGMENT IN OS 217/2006 of
MUNSIFF COURT, MAVELIKKARA DATED 18-09-2008
APPELLANT(S)/APPELLANT/RESPONDENT/PLAINTIFF:
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YOHANNAN CHACKO, AGED 37 YEARS
S/O.CHACKO, RESIDING AT PALLIAYYATHU HOUSE
KUTTEMPEROOR MURI IN MANNAR VILLAGE
KUTTAMPEROOR.P.O, ALAPPUZHA DISTRICT, PIN-689623.
BY ADV. SRI.B.RENJITHKUMAR
RESPONDENT(S)/RESPONDENT/PLANTIF/DEFENDANT:
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THOMAS MATHAI,, AGED 71 YEARS
S/O.MATHAI, KUTTISSERIL DYNA VILLAGE
NADAKKAVU MURI IN MAVELIKKARA VILLAGE
MAVELIKARA TALUK, ALAPPUZHA DISTRICT.MAVELIKARA.P.O
PIN-690101.
R1 BY ADV. SRI.R.REJI
BY ADV. SRI.M.V.THAMBAN
BY ADV. SMT.THARA THAMBAN
BY ADV. SRI.B.BIPIN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-11-
2013, ALONG WITH RSA. 755/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
das
N.K.BALAKRISHNAN, J.
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R.S.A. Nos. 754 & 755 of 2013
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Dated this the 27th day of November, 2013
JUDGMENT
These two appeals are filed by the son-in-law of the respondent who is the plaintiff in OS 343/2006. That is a suit for mandatory injunction directing the defendant therein (son-in-law) to vacate the plaint schedule building mentioned therein. The son-in-law (the appellant herein) is the plaintiff in OS 217/2006. That suit was filed against the father-in-law contending that the defendant therein was trying to forcibly evict the appellant herein. The trial court decreed the suit, OS 217/2006, granting injunction against the respondent herein (father-in-law) from evicting the appellant whereas the suit OS 343/2006 filed by the respondent herein was dismissed. The lower appellate court reconsidered the entire issue and after thorough analysis of the entire evidence found that the appellant -: 2 :- R.S.A.Nos.754 & 755 of 2013 (son-in-law) was only a licensee who was permitted to occupy the suit building and that he is not a tenant entitled to get any protection. Hence, OS 343/2006 was decreed and the other suit OS 217/2006 was dismissed. These two appeals have been filed challenging the decree and judgment passed by the lower appellate court in the two cases referred to above.
2. Heard both sides. Admittedly, the daughter of the plaintiff (daughter of the respondent herein) was married by the appellant on 21/4/2002. It was stated that at the time of marriage the appellant was employed as a clerk in a finance company. He wanted to conduct a finance business in one of the shop rooms belonging to the respondent. He started his finance business in the middle of 2003 in one of the shop rooms given to him by the father-in-law (respondent). The respondent contended that he had financial crisis and when he was in dire need of money he intended to sell the entire property measuring 23= cents with the building situated -: 3 :- R.S.A.Nos.754 & 755 of 2013 thereon. It was at that time appellant filed the suit (OS 100/2006) projecting an agreement allegedly executed by the respondent stating that the respondent/father-in-law had agreed to assign 8 cents of land and two shop rooms situated thereon. Though temporary injunction was sought for in that suit, he was not granted any temporary injunction. The respondent herein contended that no such agreement was executed and that it was only a forged one. The suit (OS 100/2006) which was for specific performance, was in fact filed by the appellant's wife, contending that the said agreement was had between the respondent and the appellant's wife (the daughter of the respondent).
3. Thereafter, the appellant filed OS 217/2006 contending that the respondent was attempting to forcibly evict him. In the suit filed by the appellant as OS 217/2006, he contended that he is a tenant of the shop building and that he obtained the same on the strength of a rent deed dated 16/08/2003. But he says, he did not obtain -: 4 :- R.S.A.Nos.754 & 755 of 2013 any receipt for payment of rent since the respondent was his father-in-law. He also contended that the rent was paid by him till February 2006. These facts are denied by the respondent.
4. The rent agreement sought to be relied upon by the appellant is a single party or unilateral agreement not signed by the landlord/respondent. Though it is not uncommon to execute an agreement by the tenant in favour of the landlord, the tenant would surely obtain an endorsement on the reverse of the copy of the agreement retained by the tenant, to prove the acknowledgment or acceptance of the rent deed executed by the tenant. The plea of execution of rent deed will run counter to the other plea that there was a sale agreement between himself and the respondent. There is nothing in evidence to show that any such agreement was executed as alleged by the appellant or that it was executed by the respondent/landlord. The contention that he did not obtain -: 5 :- R.S.A.Nos.754 & 755 of 2013 any rent receipt because the respondent is his father-in-law has also been critically commented upon by the learned counsel for the respondent stating that the son-in-law who thought of having a rent deed evidencing the alleged grant of lease did not venture to obtain the rent receipt from his father-in-law, which itself will unfold the fallacy of the case advanced by the appellant.
5. If as a matter of fact the appellant had been continuing business in the plaint schedule building as a tenant then certainly he would have obtained licence from the Municipality, which would have at least shown that he was in possession of the premises. There was only mere occupation of the premises by the son-in-law. That would only indicate that he was in permissive occupation and not as a lessee. Even in a case of license, the licensee would be in occupation which may not tantamount possession in the eye of law.
6. Much was argued by the learned counsel for the -: 6 :- R.S.A.Nos.754 & 755 of 2013 appellant that another tenant who was occupying the neighbouring shop building had also executed a single party agreement in favour of the landlord. Since no bi-parte agreement was executed in respect of another shop room, it is reasonable to assume that in respect of this shop room also no bi-parte agreement was executed, it is contended by the appellant. Even if such a single party rent agreement was executed by a tenant in respect of another shop room in favour of the landlord/respondent herein, that will not come to the rescue of the appellant to contend that he had obtained leasehold right in respect of the suit building. For dearth of acceptable evidence, the lower appellate court found that the appellant could not prove that there was a rental arrangement between the appellant and the respondent. The agreement allegedly executed by the appellant in favour of the respondent/landlord is the one (original document itself) which was produced as Ext.A1. If in fact, Ext.A1 was the original and had it been given by him -: 7 :- R.S.A.Nos.754 & 755 of 2013 to the landlord then certainly it should have been in the possession of the landlord but curiously enough, Ext.A1 the alleged rent deed is produced by the appellant himself. If so, how could it be believed that Ext.A1 rent agreement was given by the appellant to the respondent.
7. The learned counsel for the appellant was harping on the fact that the respondent in his cross examination has admitted that the adjacent room in the plaint schedule building was given on rent for conducting medical shop and that room was rented out on the basis of a rent deed but in that rent deed also the defendant did not sign. Since the defendant/respondent did not sign, that rent deed will perforce probablise the case of the appellant that Ext.A1 was also signed only by the appellant as that was the way the rent deed was agreed to be executed by the tenant, it is argued. It was also contended that the agreement was produced by the appellant before the Inspector of Assistant Commissioner (Sales Tax) for obtaining licence for the -: 8 :- R.S.A.Nos.754 & 755 of 2013 conduct of the business. However, these are not circumstances which would probabilise the case of the appellant to bolster up a plea of tenancy from his father-in- law.
8. The other ground that was projected by the appellant was that in Exts.A2 and A3 the account books and ledgers, there are entries to the effect that the rent was paid in respect of the shop room. There are glaring inconsistencies and incongruities in the entries relating to the rent paid. That apart such self serving recitals in the account books maintained by the appellant himself cannot be used against the respondent/landlord to hold that there was a tenancy arrangement.
9. The lower appellate court has, after detailed consideration of the entire evidence, found that Ext.A1 rent deed was not executed by the landlord and that the appellant is not a tenant. If the plea of tenancy set up by the appellant is unacceptable then occupation of the suit -: 9 :- R.S.A.Nos.754 & 755 of 2013 premises can only be as a licensee. In this connection it is also profitable to note that in the earlier suit OS 100/2006, the case of the appellant was that a sale agreement was executed and pursuant thereto he was put in possession of the shop building. That is diametrically opposite to the plea of tenancy set up by the appellant in OS 217/2006. When there is no evidence to show that Ext.A1 rent deed was executed by the landlord, the question of interpreting that document to find whether the appellant is a lessee or licensee does not arise at all. The decision of the Hon'ble Supreme Court in C.M.Beena and another v. P.N.Ramachandra Rao (2004) 3 SCC 595 has thus no application to the facts of this case. The lower appellate court found that only because the appellant was the son-in- law, he was permitted to occupy the shop building for a period of two years with a stipulation that the appellant should vacate the premises at any time when demanded by the respondent/landlord. It was specifically stated in -: 10 :- R.S.A.Nos.754 & 755 of 2013 paragraph 4 of the written statement filed in OS 100/2006 that there was no agreement for sale or anything of that sort or any other contract as stated in that suit. The inconsistencies in the case set up by the appellant are loudly obtrusive that the plea of tenancy is unacceptable. There is no legal peg for a justifiable claim to hang on.
No substantial question of law is involved in these appeals. Hence, these appeals are dismissed. However, the appellant is granted three months time from today to vacate the plaint schedule building.
Sd/-
N.K.BALAKRISHNAN, JUDGE das // True copy // PA to Judge