IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 635 of 2003()
1. KODIYIL EACHAL NALAKATH USMAN
... Petitioner
Vs
1. P.K.KADEESUMMA,
... Respondent
2. KODYIL EACHAL NALAKATH KHADEEJA,
3. PAZHAEKKOTTAL MAYAN,
4. BROTHER - DO - MUHAMMED, AGED 21,
5. DO. UMMER S/O. KUTTIATHA, AGED 19,
6. PAZHAYAKOTTAL BEEYACHUMMA,
7. SON DO. ASHRAFF, AGED 22, BUSINESS
8. SISTER DO. KUNHAMI, AGED 20
9. BROTHER - DO - THAJUDDIN, AGED 19, DO.
10. SUPPL.10. KEN, KADEEJA,
11. CHILDRAN KEN.ISMAIL,
12. YOUNGER SISTER KEN SUHARA,
13. YOUNGER BROTHER KEN SADIQUE,
14. SUPPL.14. KODIYIL EACHAL NALAKATH AYISHA
15. DO. YAHIA ALI D/O. MAMMALI,
16. DO.REMLA D/O. MAMMALI, AGED 26,
For Petitioner :SRI.C.KHALID
For Respondent :SRI.CIBI THOMAS
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/01/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.635 of 2003
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Dated this the 6th day of January, 2010.
JUDGMENT
The Regular Second Appeal arises from judgment and decree of learned
Principal Sub Judge, Thalassery in A.S.No.23 of 1998 arising from judgment
and decree of learned Munsiff, Kuthuparamba in O.S.No.24 of 1979. Suit is for
declaration of leasehold right and recovery of possession of a shoproom. Trial
court dismissed the suit. That is confirmed by the first appellate court. Hence
the Second Appeal. During the pendency of the proceedings, the original
plaintiff transferred her right in favour of plaintiff No.2. She died pending
proceedings. But in the light of the assignment in favour of plaintiff No.2 her
legal representatives were not impleaded. Parties are referred to as plaintiffs
and defendants as in the trial court for convenience.
2. Deceased defendant No.1 is the brother and thavazhi karanavan of
deceased plaintiff No.1 and defendant No.3. Originally deceased plaintiff No.1
wanted recovery of possession of the shoproom from deceased defendant No.1
and his children alleging that the shoproom was taken on lease by herself and
defendant No.3 from the wife and children of Savan Haji. According to her as
per Ext.A1, sreedhana deed executed by deceased defendant No.1 she got right
over a shoproom situated near Kuthuparamba bus stand which was entrusted to
the said Savan Haji as per a rent deed dated 1.3.1947. As per the directions in
Ext.A1 if rent of the shoproom exceeded Rs.120/- per month, the excess
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amount was to be paid to defendant No.3. While so, to accommodate her
children deceased plaintiff No.1 asked Savan Haji to vacate the said room.
There was a mediation in the presence of deceased defendant No.1 and in that
mediation the shoproom belonging to the wife and children of Savan Haji was
entrusted to deceased plaintiff No.1 and defendant No.3 as per a kaichit dated
13.5.1966. The same day a lease deed was executed in favour of Savan Haji in
respect of the room referred to in Ext.A1. Plaintiff No.1 alleged that defendant
No.3 was not available to join as a plaintiff and hence she was impleaded as a
defendant and sought recovery of possession of the schedule room on behalf of
deceased plaintiff No.1 and defendant No.3. According to deceased plaintiff
No.1, her children were conducting business in the schedule room under the
supervision of deceased defendant No.1 but the latter managed to create a
document (concerning the business) in favour of defendant No.2, his daughter.
Defendant Nos.1 and 2 denied that deceased defendant No.1 was looking after
the affairs of deceased plaintiff No.1 and defendant No.3. It is incorrect to say
that deceased defendant No.1 created false documents. They admitted that the
schedule room was leased to deceased plaintiff No.1 and defendant No.3 as
per kaichit dated 13.5.1966. According to them on 30.8.1967 deceased plaintiff
No.1 and defendant No.3 created an oral lease in favour of deceased defendant
No.1 for a rent of Rs.45/- per month and the rent was paid till 30.3.1978 to
Kadheeja, daughter of deceased plaintiff No.1 and her husband. They claimed
that the business belonged to deceased defendant No.1 and that the license for
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the same was taken in the name of defendant No.2. Deceased plaintiff No.1
filed I.A.No.2160 of 1983 for amendment of the plaint to state that defendant
No.3 has no right or interest in the shoproom and that the lease is exclusively in
favour of deceased plaintiff No.1. She alleged that deceased defendant No.1
mischievously got the name of defendant No.3 also included in the lease deed
dated 13.5.1966 executed in favour of wife and children of Savan Haji in respect
of the schedule room. The application was opposed by defendant Nos.1 and 2.
Learned Munsiff dismissed I.A.No.2160 of 1983. Learned Munsiff granted a
decree in favour of deceased plaintiff No.1 for recovery of possession of the
schedule room on behalf of herself and on behalf of defendant No.3 and
rejecting the plea of oral lease in favour of deceased defendant No.1.
Defendant Nos.1 and 2 challenged the judgment and decree in A.S.No.230 of
1984. Deceased plaintiff No.1 filed cross-objection challenging dismissal of
I.A.No.2160 of 1983. In the meantime defendant No.3 assigned the half share
she claimed in the lease hold right over the schedule room to defendant Nos.1,
2 and 7 to 9 on 9.11.1984. Defendant Nos.1 and 2 filed I.A.No.91 of 1986 to
amend the appeal memorandum stating that deceased plaintiff No.1 who has
only half share in the leasehold right is not entitled to recover possession of the
schedule room from defendant Nos.1, 2 and 7 to 9 who acquired the remaining
half share from defendant No.3. Learned Sub Judge who heard the appeal
allowed I.A.Nos.2160 of 1983 and 91 of 1986. Judgment and decree of learned
Munsiff were set aside as per judgment dated 10.2.1987 and the case was
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remanded to the trial court for disposal after incorporating the amendments. As
per amendment of the plaint paragraph No.2 has been deleted and a new
paragraph has been incorporated which stated that the shoproom in the
possession of Savan Haji was assigned to deceased plaintiff No.1 as her
sreedhana by deceased defendant No.1 as per Ext.A1 dated 15.1.1945,
defendant No.3 has only a right to collect the profit beyond Rs.120/- accordingly
Savan Haji was paying Rs.21.25 per month to deceased plaintiff No.1 and
Rs.7.50 per month to defendant No.3. When deceased plaintiff No.1 wanted
Savan Haji to vacate the said room there was a mediation involving deceased
defendant No.1 and others and a settlement was reached. As per that,
schedule room belonging to the wife and children of Savan Haji was entrusted to
deceased plaintiff No.1 as per kaichit dated 13.5.1966. But it is later learnt that
deceased defendant No.1 mischievously included the name of defendant No.3
also in the lease deed. The lease deed is in the possession and custody of
deceased defendant No.1. Deceased plaintiff No.1 learned that name of
defendant No.3 also was included in the kaichit dated 13.5.1966 in respect of the
schedule room as she was entitled to receive Rs.7.50 from Savan Haji in respect
of the room referred to in Ext.A1 and belonging to deceased plaintiff No.1. But,
defendant No.3 has no right in the schedule room and the lease is exclusively in
favour of deceased plaintiff No.1. While so defendant No.1 died on 23.10.1988.
Defendant Nos.2 and 7 to 13 are the legal representatives. Plaintiff No.1
assigned her leasehold right over the schedule room to additional plaintiff No.2
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as per registered deed dated 11.11.1988. After amendment of the plaint
defendant Nos.1, 2 and 7 to 9 filed additional written statement denying that
lease of the schedule room was exclusively in favour of deceased plaintiff No.1.
They asserted that lease was in favour of deceased plaintiff No.1 and defendant
No.3. They claimed that as per a registered document dated 9.11.1984,
defendantNo.3 assigned her half share in the leasehold right to defendant Nos.1,
2 and 7 to 9 and hence they are not liable to be evicted at the instance of
deceased plaintiff No.1 who is only a co-sharer of the leasehold right. Leaned
Munsiff found on the evidence (after the remand) that claim of defendant Nos.1
and 2 that deceased defendant No.1 is a lessee of the schedule room is not
correct but learned Munsiff was not inclined to accept the case of plaintiffs that
the lease of the shoproom was exclusively in favour of deceased plaintiff No.1.
Learned Munsiff held that there is no evidence to show the exclusive right of
deceased plaintiff No.1 over the schedule room. The assignment of half share of
leasehold right of defendant No.3 in favour of defendant Nos.1, 2 and 7 to 9 was
found to be valid and hence it was held that additional plaintiff No.2 was not
entitled to evict the defendants. Holding so, the suit was dismissed. That has
been confirmed by the first appellate court. Hence, the Second Appeal.
Following substantial questions of law are framed for a decision:
i. Whether the stipulation in Ext.A1, sreedhana deed imposing an
obligation that plaintiff No.1 shall pay to her nieces who are not parties to Ext.A1,
income whenever it exceeds Rs.120/- per year would create a co-ownership right
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in the property or affect the absolute title vested in the plaintiff No.1?
ii. Whether an obligation attached to the property gifted, can be validly
transferred to a lease deed in respect of another property, so as to make it a co-
ownership property?
iii. Whether lease deeds created without consent or knowledge of
plaintiff No.1 would be binding on her and would affect her title to the properties?
iv. Whether by acquisition of landlord’s right of a leasehold building,
the tenancy will not merge with the superior right of ownership and preclude the
the owner from claiming tenancy right?
3. It is contended by learned counsel for supplemental plaintiff No.2
that the courts below misread the evidence on record to hold that exclusive
leasehold right of deceased plaintiff No.1 in respect of the schedule room is not
proved. Learned counsel submitted that courts below did not take into account
that this is an uneven battle between a poor, illiterate lady (deceased plaintiff
No.1) and an intelligent and scheming advocate clerk (deceased defendant
No.1). According to the learned counsel there is no evidence to show that
defendant No.3 had any leasehold right over the schedule room. Learned
counsel has drawn my attention to the evidence of DW3, one of the defendants
and husband of defendant No.3. Learned counsel for contesting defendants per
contra argued that none of the substantial questions of law framed do arise for
a decision in this case since those questions either related to the right of
defendant No.3 in the shoproom in the possession of Savan Haji and referred to
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in Ext.A1 which is not germane for consideration in this case, or a decision of the
courts below on evidence which did not involve any substantial question of law.
Learned counsel submitted that on evidence courts below were not inclined to
accept the case of plaintiffs that leasehold right exclusively belonged to
deceased plaintiff No.1 and accordingly the suit was dismissed. That according
to the learned counsel involved no substantial question of law requiring
interference by this Court.
4. The suit was filed in the year 1979. Accepting the case of
deceased plaintiff No.1 that lease in respect of schedule room is in favour of
herself and defendant No.3, learned Munsiff initially granted decree for eviction.
It is as per order dated 10.2.1987 on I.A.No.2160 of 1983 that plaint was
amended. It is averred in the plaint by amendment that defendant No.3 has no
right over the schedule room and that name of defendant No.3 happened to be
in the kaichit dated 13.5.1966 on account of a mischief played by deceased
defendant No.1. Deceased plaintiff No.1 was under the impression that
deceased defendant No.1 included the name of defendant No.3 also in the
kaichit dated 13.5.1966 executed in favour of wife and children of Savan Haji
because defendant No.3 was entitled to receive Rs.7.50 per month from Savan
Haji in respect of the shoproom referred to in Ext.A1. In otherwords, right from
13.5.1966 upto the filing of I.A.No.2160 of 1983 atleast for about 17 years
deceased plaintiff No.1 was of the view that lease in respect of the schedule
room was in favour of herself and defendant No.3. What she stated in the plaint
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originally is that she is seeking recovery of possession on behalf of herself and
defendant No.3 and that the latter was impleaded as such only because she was
not available to join as a plaintiff. It is not disputed by the deceased plaintiff
No.1 that in the kaichit dated 13.5.1966 defendant No.3 is shown as a co-tenant
of the schedule room along with deceased plaintiff No.1. According to deceased
plaintiff No.1, the lease deed is in the custody of deceased defendant No.1 but,
he denied that. Lease deed dated 13.5.1966 is not available in this case but,
fact remained that in that lease deed defendant No.3 is also shown as a co-
tenant of the schedule room along with deceased plaintiff No.1. Now the
question for consideration is whether courts below are legally correct in holding
that plaintiffs have not shown that the lease is exclusively in favour of deceased
plaintiff No.1 and that defendant No.3 is only a name lender in the lease deed
merely for the reason that she was entitled to receive Rs.7.50 per month from
Savan Haji in respect of the shoproom referred to in Ext.A1.
5. The substantial questions of law Nos.1 and 2 framed are in
respect of the respective right of deceased plaintiff No.1 and defendant No.3 in
the shoproom in the possession of Savan Haji and referred to in Ext.A1. In my
view it is not necessary to enter into a decision as to the nature and character of
right defendant No.3 has in the said shoproom in this proceeding since
question for consideration is only whether courts below are legally correct in
holding that the case of deceased plaintiff No.1 as per the amended plaint that
lease in respect of the schedule room is exclusively in her favour
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notwithstanding that kaichit dated 13.5.1966 mentioned defendant No.3 also as
a co-tenant along with her is not established. Therefore question Nos.1 and 2 do
not arise for a decision in this appeal.
6. Now the crucial question is whether the courts below are justified in
holding against the claim of plaintiffs that the exclusive lease hold right over the
shoproom remained with deceased plaintiff No.1. Learned counsel for
supplemental plaintiff No.2 has referred to me the oral and documentary
evidence adduced by the parties. The documents produced by the defendants
are in respect of the claim made by defendant Nos.1 and 2 regarding the oral
lease in favour of deceased defendant No.1. Learned Munsiff found that those
documents are either not acceptable or not sufficient to prove the alleged oral
lease in favour of deceased defendant No.1 and disbelieved the case of
defendant Nos.1 and 2 regarding that oral lease. That finding is not sufficient to
hold in favour of supplemental plaintiff No.2 or against the contesting defendants
regarding the exclusive leasehold right of deceased plaintiff No.1 in the schedule
room. I stated that the kaichit dated 13.5.1966 is not before court whatever be
the reason thereof. There is no evidence to show that the said kaichit was in
the custody of deceased defendant No.1 and has been withheld by him.
Plaintiffs did not take steps to examine landlords of the schedule room, wife and
children of Savan Haji to show with whom the rental arrangement was.
According to the plaintiffs, Savan Haji was siding with the defendants but there
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is no evidence in that line and at any rate that does not absolve the
responsibility of plaintiffs to examine the landlords and prove that the lease is
exclusively in her favour. Particularly in view of the admitted fact that the rent
deed mentioned defendant No.3 also as a co-tenant and in view of the
averments in the plaint originally made and incorporated by amendment.
Exts.B2 to B14 related to claim of defendant Nos.1 and 2 regarding oral lease
in favour of defendant No.1 and hence are not relevant for consideration in the
Second Appeal. Exts.X1 to X4 are produced by Savan Haji as per the direction
of the trial court (he was not examined as a witness). Ext.X1 is a reply notice
dated 17.1.1972 issued to plaintiff No.1 on behalf of Savan Haji. It refers to the
kaichit dated 16.9.1949 executed by Savan Haji in respect of the shoproom
covered by Ext.A1 in favour of plaintiff No.1 and defendant No.3. Ext.X1 states
that thereafter plaintiff No.1 and defendant No.3 demanded vacant possession of
the said room and there was a mediation and settlement. As per that settlement,
schedule room belonging to the wife and children of Savan Haji was given to
‘your clients’ for business of plaintiff No.1 and defendant No.3. There is also
reference to the kaichit in favour of the wife and children of Savan Haji
executed on 13.5.1966. Ext.X1 gives the impression that to the notice issued to
Savan Haji on behalf of deceased plaintiff No.1 and defendant No.3 he had
replied that schedule room was taken on rent by deceased plaintiff No.1 and
defendant No.3 for their business. Ext.X2 is another notice dated 7.7.1972
issued to Savan Haji on behalf of deceased plaintiff No.1 where, the statements
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in Ext.X1 are denied . Ext.X2 states that the schedule room was taken on rent
and business is being run by defendant No.1. It is interesting to note from
Ext.X2 that it is stated on behalf of deceased plaintiff No.1 that she has no
interest at all in the schedule room and that the said room was given to
defendant No.1 in violation of the premise given by Savan Haji to deceased
plaintiff No.1. Ext.X3 is the reply to Ext.X2 on behalf of Savan Haji where he
asserted his statements in Ext.X1. Ext.X4 is a notice dated 12.6.1974 issued to
Savan Haji on behalf of deceased plaintiff No.1 as instructed by supplemental
plaintiff No.2. There, it is stated that Savan Haji and defendant No.1 fabricated
documents. DW2, an advocate was examined to prove Exts.X1 to X4. Trial
court was not inclined to act upon the evidence of DW2 and Exts.X1 to X4 on the
premise that the notices and replies caused to be issued on behalf of deceased
plaintiff No.1 by deceased defendant No.1 who was an advocate clerk. Even if it
is assumed that Exts.X1 to X4 are issued at the instance of deceased defendant
No.1 that does not in any way advance the case of deceased plaintiff No.1 that
she is the exclusive lessee of the schedule room. Thus documentary evidence
do not in any way support the case of deceased plaintiff No.1 and instead,
Exts.X1 to X4 would defeat her case.
7. So far as the oral evidence is concerned, deceased plaintiff No.1
spoke as PW1. Her evidence would show that she has no idea about the
shoproom or the rental arrangements. But she originally stated in the plaint
that lease was in favour of herself and defendant No.3, that allegation stood for
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years and later she got the plaint amended to say that the lease is exclusively for
herself and defendant No.3 is only a name lender in the kaichit. Deceased
defendant No.1 was examined as DW1. Learned counsel for supplemental
plaintiff has referred to me the evidence of DW1 and stated that evidence lacks
consistency and truthfulness. Evidence of DW1 is confronted with Exts.A8 and
9. True, evidence given by DW1 is inconsistent but, he has given evidence on
behalf of himself and defendant No.2 regarding the alleged oral lease in his
favour and not regarding the lease in respect of the shoproom in favour of
deceased plaintiff No.1 and defendant No.3. At one stage, he pleaded
ignorance about the lease in favour of deceased plaintiff No.1 and defendant
No.3. Even if it is assumed that the evidence of DW1 is not reliable that only
concerned his claim and cannot affect the legal representatives of defendant
No.3 and their case that defendant No.3 was a co-tenant of the schedule room
along with plaintiff No.1. DW3 is the husband of defendant No.3 and himself,
a defendant. He stated that the lease was in favour of deceased plaintiff No.1
and defendant No.3. But, ofcourse in cross-examination he stated that he does
not know who was liable to pay rent of the schedule room to the wife and
children of Savan Haji. Himself or defendant No.3 has not so far given rent to
Savan Haji. Even if it is so assumed I must bear in mind that there is no
evidence to show that rent was paid by deceased plaintiff No.1 alone at any rate,
for her alone. I must also bear in mind that original averments in the plaint
were that lease was in favour of deceased plaintiff No.1 and defendant No.3
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and recovery of possession the schedule room was sought on behalf of
defendant No.3 as well. Having stated so, the burden was heavier on plaintiffs
to show that the said statement was not correct and that the lease was
exclusively in favour of deceased plaintiff No.1. So far as DW4 is concerned,
his evidence is of no relevance as he was examined to prove the alleged oral
lease in favour of defendant No.1. I have gone through the evidence and
considered the submission made by learned counsel on both sides. There is no
acceptable or reliable evidence to show that lease was exclusively in favour of
deceased plaintiff No.1. There is no material to hold, notwithstanding that in the
kaichit dated 13.5.1966 defendant No.3 is also mentioned as a lessee of the
schedule room that deceased plaintiff No.1 alone was the tenant of the
schedule room. So much so courts below are legally justified in holding against
deceased plaintiff No.1 in that regard. No substantial question of law is
involved as the finding of the courts below rest on an appreciation of the
evidence.
Resultantly, the Regular Second Appeal fails. It is accordingly dismissed.
No cost.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
R.S.A.No.635 of 2003
JUDGMENT
6th January, 2010.