IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1354 of 2009()
1. SATHEESH BABU @ KOCHUMON, AGED ABOUT
... Petitioner
2. P.N.SURESH BABU, AGED 43 YEARS,
Vs
1. PHILIP KOSHY, VADAKKEMOOTTIL VEEDU,
... Respondent
For Petitioner :SRI.P.HARIDAS
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/02/2010
O R D E R
THOMAS P.JOSEPH, J.
= = = = = = = = = = = = = = = = = = = = = = = =
R.S.A. NO.1354 of 2009
= = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 1st day of February, 2010
J U D G M E N T
———————
The Second Appeal is brought from judgment and decree of
learned Sub Judge, Thiruvalla in A.S. No.25 of 2006 granting decree
for eviction and recovery of possession of a shop room with
damages for use and occupation at the rate of Rs.500/- per month
from January, 2000 till recovery of possession, reversing judgment
and decree of learned Munsiff dismissing the suit – O.S. No.37 of
2000. According to the original plaintiff (he died pending suit) suit
property belonged to him as per Ext.A3, partition deed
No.396/1992. He had executed Ext.A4, Will bequeathing the said
property in favour of his son, the respondent who after death of
original plaintiff was impleaded as supplemental plaintiff No.2. Case
of original plaintiff and respondent is that on 26.3.1999 appellants
trespassed into the schedule room and took forcible possession
thereof. It is the further case of original plaintiff and respondent
that appellants took forcible possession of the schedule room with
the help of daughter-in-law of deceased original plaintiff.
Appellants contended that shop room and the adjacent lean-to were
R.S.A. No.1354 of 2009
-: 2 :-
taken on rent by appellant No.1 from the original plaintiff in the year
1992 for a monthly rent of Rs.250/- and rent was enhanced to
Rs.350/- per month in June, 1998. Tenancy is not terminated.
Hence the suit for recovery of possession is not maintainable. Trial
court on evidence found that the alleged trespass is not proved,
accepted the plea of appellants regarding tenancy and dismissed the
suit. Respondent took up the matter in appeal. First appellate
court reversed the finding of trial court, held that the plea of
appellants regarding tenancy is not proved and on the strength of
title granted recovery of possession in favour of the respondent with
damages for use and occupation as above stated. That is under
challenge in this Second Appeal at the instance of appellants urging
by way substantial questions of law whether when possession of
appellants is admitted, was it not the bounden duty of respondent
to prove that they are trespassers and not tenants, whether
evidence let in by the respondent revealed that appellant No.1 is
not tenant of the shop room and whether trial court ought to have
found that the suit is not properly instituted. It is contended by
learned counsel urging the above that the finding entered by the
first appellate court is erroneous.
2. I stated that suit was instituted by the original plaintiff in
R.S.A. No.1354 of 2009
-: 3 :-
his capacity as the owner and title holder of the suit property on the
strength of Ext.A3, which is not disputed. On his death respondent,
his son was impleaded as supplemental plaintiff No.2 on the
strength of Ext.A4, Will No.66 of 1996. P.W.1 is claimed to be Power
of Attorney holder of respondent. He did not produce any Power of
Attorney as such but proved Ext.A1, Fax message received from the
respondent who is working abroad and authorising P.W1 to conduct
the case on his behalf. It has been held by this Court in
Narayanan Nair v. John Kurien (1988 [1] KLT 673) that
even for institution of the suit a written authority is not
indispensable. Even oral authorisation would be sufficient to
constitute due authorisation. In the present case suit was validly
instituted by the original plaintiff and so far as the respondent is
concerned by Ext.A1, Fax message he has authorised P.W1 to
conduct the case on his behalf. I do not find anything wrong in the
first appellate court accepting Ext.A1 as a valid authorisation for
P.W.1 to conduct the case on behalf of respondent.
3. What remained is whether finding of first appellate court
regarding alleged trespass pleaded by the original plaintiff and
respondent and the tenancy set up by the appellants is legal and
R.S.A. No.1354 of 2009
-: 4 :-
correct. Exhibit B1 is the photocopy of a rent deed allegedly
executed by the original plaintiff in favour of appellant No.1.
Exhibits X1 and X2 are true extract of the account of appellant No.1
maintained in the State Bank of Travancore and a consent deed
executed by mother of appellant No.1, respectively. First appellate
court found that Exts.X1 and X2 and the evidence of D.W.2,
Manager of the State Bank of Travancore have no reference to the
shop room in question or the business allegedly carried on there.
So far as Ext.B1 is concerned, first appellate court observed that its
due execution is not proved and that there is material discrepancy
regarding its execution. When the date of execution in figure is
given in Ext.B1 as 13.4.1992 the recital in it is as if it was executed
on 13.2.1998. This discrepancy was not explained by the appellants
satisfactorily. In the circumstances first appellate court is justified in
rejecting Ext.B1.
4. What remained is the oral evidence. I stated that
authorised representative of the respondent gave evidence as P.W1.
P.Ws.2 and 3 are witnesses examined by the respondent to prove
the alleged trespass. But it has come out that they have no direct
information about the alleged trespass. Appellant No.1 gave
evidence as D.W.1 and stated about tenancy in his favour created
R.S.A. No.1354 of 2009
-: 5 :-
by original plaintiff in the year 1992. But he was not able to
produce any document (except Exts.B1, X1 and X2 which I have
already adverted to) to prove the alleged tenancy. No single receipt
for payment of rent is produced. It was suggested to P.W.2 about
the rent deed between appellant No.1 and the original plaintiff but
he pleaded ignorance. He stated that his information about the
transaction between the parties is hearsay. There is nothing in the
evidence of P.W2 which would show that there was any tenancy as
pointed out by the appellants. P.W.3 though in chief examination
stated about the alleged trespass, in cross-examination he stated
that he has no direct information. He was told by the original plaintiff
that there was no entrustment in favour of the appellants but
original plaintiff told him that the monthly rent was Rs.750/-. He
also stated that his statement that original plaintiff had not received
the rent is the information he received. This statement was taken
note of by the trial court to hold in favour of the tenancy pleaded by
the appellants. But the trial court failed to note that what is stated
by P.W3 is not his direct information. Trial court also failed to note
that if as per the hearsay information of P.W3 rent payable was
Rs.750/- per month, appellants have no such case and according to
them rent originally fixed was Rs.250/- which was enhanced to
R.S.A. No.1354 of 2009
-: 6 :-
Rs.350/- in June, 1998. Even the appellants have no case that rent
at any point of time was Rs.750/-. In the circumstances first
appellate court was not satisfied with the finding entered by the trial
court and reversed the same. Finding of first appellate court is
based on the evidence on record and its appreciation. I am not
persuaded to think that any substantial question of law is involved
requiring admission of this Second Appeal.
Resultantly Second Appeal fails and it is dismissed in limine.
Appellants are granted three months’ time from this day to vacate
the premises on condition that they will file an affidavit in the trial
court within a period of three weeks from this day undertaking to
vacate the premises within the above period of three months
without putting forth any claim or objection on any count.
Interlocutory Application Nos.3096 and 3097 of 2009 shall
stand closed.
THOMAS P.JOSEPH, JUDGE.
vsv