IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 623 of 1995()
1. P.NARASIMHA SHENOI
... Petitioner
Vs
1. K.KISHANNA RAI
... Respondent
For Petitioner :SRI.M.C.SEN (SR.)
For Respondent :SRI.L.GOPALAKRISHNAN POTTI
The Hon'ble MR. Justice K.M.JOSEPH
Dated :24/06/2009
O R D E R
K. M. JOSEPH, J.
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S.A.NO. 623 OF 1995 G
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Dated this the 24th June, 2009
JUDGMENT
Defendant in a Suit for recovery of possession of the
building, is the appellant. The Suit stands decreed concurrently
by both the courts below.
2. The Suit was filed by the respondent alleging, inter alia,
that the plaint schedule building belongs to the
respondent/plaintiff. According to the respondent/plaintiff, his
mother leased out the building to the father of the
appellant/defendant and it is his further case that the appellant’s
father attorned to the respondent and he continued as tenant. It is
stated that the rent payable is Rs.15/= per month and the
appellant paid rent upto 31.3.1980 and thereafter he committed
default in payment of rent. The respondent/plaintiff issued Suit
notice terminating the tenancy with effect from 1.4.1983. He
sought to recover arrears of rent and possession of the building.
S.A.NO.623/95 G 2
In the alternative, he sought to recover possession of the
building on the strength of his title. The appellant contended
that the respondent has no title and he is not a lessee under the
respondent. There is no landlord-tenant relationship between
them. It is also denied that the appellant paid rent to the
respondent upto March, 1980. According to the appellant, it
was from one Gowri Hengsu that his father took the building on
lease in 1946 and on the death of the appellant’s father, the
tenancy right devolved on his legal heirs including the appellant.
It was the case of the appellant that it was Gowri Hengsu who
collected rent from the appellant. The trial court raised nine
Issues. It had referred the matter relating to kudikidappu to the
land tribunal. The land tribunal found that the appellant is in
occupation of a portion of the building only and he is not
entitled to the benefits of the Land Reforms Act. The trial court
further found that the evidence adduced by the
respondent/plaintiff to prove the landlord-tenant relationship is
S.A.NO.623/95 G 3
not satisfactory. It also found that the quit notice is not valid.
Thereafter, it proceeded to deal with the contention of the
respondent that the plaint schedule building belongs to him.
After proceeding to deal with the various contentions, it found
that the appellant has shown that the respondent is the owner of
the building and he is entitled to recover possession of the same.
Accordingly, the trial court decreed the Suit by passing a Decree
for recovery of possession of the plaint schedule building with
mesne profits and interest at six per cent. The first appellate
court has confirmed the findings.
3. Heard Shri M.C. Sen, learned senior counsel appearing
for the appellant and Shri L. Gopalakrishnan Poti, learned
counsel appearing on behalf of the respondent. Learned senior
counsel for the appellant would contend that a Suit for recovery
of possession by a co-owner is not maintainable without the
junction of the other co-owners after coming into force of the
Kerala Joint Family Abolition Act. It is to be noted that the
S.A.NO.623/95 G 4
plaint schedule property is a building. The trial court has found
that the plaintiff is the owner of the building. It has relied on
certain records also. The trial court found that if the appellant
maintained that the records produced by the respondent before
the court are unreliable, he could have proved the same with
reference to the original records and there was no effort on the
part of the appellant to prove his contentions on the basis of the
original records. The finding that the respondent is the owner of
the plaint schedule building, is essentially a finding of fact. No
doubt, the trial court found that the land belonged to the grand
mother of the plaintiff. The grand mother had two daughters,
one is the mother of the respondent/plaintiff and the other is the
lady from whom the appellant claimed tenancy rights. There
cannot be any quarrel with the proposition that even a Suit by
one co-owner will lie without the junction of the other co-
owners as any Decree that would be passed, would be treated as
for the entire body of the co-owners. But, here, the finding is
that the respondent is the owner of the building. What is
S.A.NO.623/95 G 5
essentially assailed before me is a decision as confirmed by the
first appellate court which is based on findings of fact. No
substantial question of law is raised before me and the Appeal
fails and it is dismissed.
Sd/=
K. M. JOSEPH, JUDGE
kbk.
// True Copy //
PS to Judge
S.A.NO.623/95 G 6
K.M. JOSEPH, J.
S. A. NO.623 OF 1995 G
JUDGMENT
24th June, 2009.