IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 623 of 2010()
1. C.MANI, S/O.CHAMI,
... Petitioner
Vs
1. R.RAJI, W/O.SUBRAMANIAN,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :07/07/2010
O R D E R
P.BHAVADASAN, J.
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RSA No.623 of 2010-G
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Dated 7th July 2010
Judgment
Faced with the concurrent findings against him,
the defendant in OS No.228/04 before the Munsiff’s Court,
Chittur has come up in appeal. The parties and facts are
hereinafter referred to as they are available before the Trial
Court.
2. The plaintiff obtained the plaint schedule
property as per Ext.A1 assignment deed dated 14.11.2002.
Eversince then, he has been in absolute possession and
enjoyment of the property. It is pointed out that the
defendant, who is a relative of the father of the plaintiff,
was allowed to reside in the property as an interim
arrangement and he had no manner of right over the suit
property. He has been residing there from 23.01.2003
onwards. According to the plaintiff, the defendant had
agreed to vacate the premises on demand. It is claimed
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that on 01.05.2004, the plaintiff revoked the permission
granted to the defendant and asked him to vacate the
premises. But, he did not heed to the said demand made
by the plaintiff. Hence the suit.
3. The defendant resisted the suit, pointing out
that he was in possession of the property in pursuance of
an agreement of sale, entered into with the father of the
plaintiff. According to him, the father of the plaintiff
Sri.Ramankutty had agreed to sell the property to him for a
sum of Rs.7,500/- and they had entered into a sale
agreement dated 14.12.1991. It is submitted that due to
financial difficulties, the sale deed could not be registered.
Since the entire sale consideration was paid by the
defendant, Sri.Ramankutty, the father of the plaintiff had
agreed to register the document, as and when demanded
by the defendant. The defendant submitted that for the last
three years, both their families were not in good terms and
so, Sri.Ramankutty was not ready to execute the sale deed
in his favour and he executed it in favour of his daughter,
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who is the plaintiff. According to the defendant, he is in
possession of the property since 1975 and he has made
valuable improvements to the property. On the basis of
these contentions, he prayed for dismissal of the suit.
4. The Trial Court raised necessary issues for
consideration. The evidence consists of the testimony of
PW1 and documents marked as Exts.A1 to A5 from the
side of the plaintiff. The defendant examined DW1 and had
Exts.B1 to B13 marked.
5. The Trial Court on an appreciation of the
evidence, came to the conclusion that the claim of
possession based on agreement of sale was not
established and the execution of the agreement itself was
doubtful. The Trial Court observed that the possession of
the property by the transferee in pursuance of an
agreement for sale cannot confer title to the transferee. It
was held that the defendant has no manner of right over
the plaint schedule property and accordingly, the suit was
decreed.
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6. The defendant carried the matter in appeal as
AS No.118/06 before the District Judge, Palakkad. The
lower Appellate Court reconsidered the evidence on record
and came to the conclusion that the defendant had
miserably failed to establish any manner of right over the
suit property which entitles him to continue in possession of
the property. Accordingly, the Judgment and decree of the
Trial Court was confirmed. The said Judgment and decree
are assailed in this appeal.
7. The learned counsel for the appellant raised
three contentions before this Court. They are :
1) There was no notice terminating the licence, issued
to him by the plaintiff.
2) The defendant being in possession of the property
in pursuance of an agreement for sale, he cannot be
evicted in the manner as is now sought for by the
plaintiff.
3) There was no notice issue to him, claiming mesne
profits from the property.
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8. It must be said that none of the above
contentions have any legal basis. It is stated in the plaint
that there was a demand made by the plaintiff to give
vacant possession of the premises. Even assuming there
was no such notice, it does not matter because the
defendant was in occupation of the property on the basis of
a licence agreement and the institution of a suit amounts to
notice.
9. As far as the second contention is concerned,
both the courts below have found that the appellant was
not able to establish his claim. The lower Appellate Court
has noticed that the mistake committed by the Trial Court is
regarding the claim based on S.53A of the Transfer of
Property Act. With regard to this matter, the lower
Appellate Court stated that it is not possible to accept the
plea of the defendant that he was in possession of the suit
property by virtue of an agreement for sale.
10. Cogent reasons are given by the courts
below for disbelieving the defendant with regard to the
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claim of possession in pursuance of a sale agreement. It is
pointed out that Ext.B1 agreement is dated 14.12.1991 and
that Sri.Ramankutty had agreed to sell the property for a
sum of Rs.7,500/-. The plaintiff has specifically disputed
Ext.B1 agreement put forward by the defendant. There
were witnesses to Ext.B1 agreement. But, for reasons best
known to the defendant, he chose to examine none of
those attestors. It is also found that in the cross
examination, DW1 had no clear idea regarding the
execution of Ext.B1 agreement. He was even unaware as
to who wrote the said agreement. The lower Appellate
Court also noticed that the agreement for sale and the
receipt of sale consideration were at a point of time, when
the relationship between the two families was quite friendly.
If that be so, it would be improbable that the defendant
would not have obtained a sale deed in his favour. He
comes up with a story that Sri.Ramankutty had told him
that the original title deed was in the bank and that he had
agreed to execute the sale deed after receiving the
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document from the bank. This claim of the defendant was
rightly declined by the first Appellate Court. It is also found
that the claim of the defendant that he was in possession of
the suit property from 1978 is not supported by any
evidence.
11. The lower Appellate Court has independently
evaluated the entire evidence on record and has come to
the conclusion that there is nothing in the evidence
adduced by the defendant to show that he is entitled to the
protection of S.53A of the Transfer of Property Act. Equally
without force is the third contention that without issuing
notice, a claim of mense profits will not lie. It follows that all
the three contentions raised by the appellant are without
any basis. There is nothing to show that the findings of the
courts below which are essentially questions of fact, are
either perverse or unwarranted by the evidence on record.
In the result, this Second Appeal is without merits and it is
liable to be dismissed.
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12. Faced with the above situation, the learned
counsel for the appellant pointed out that the defendant
has been in occupation of the property for a very long time
and he may be given some time to vacate the premises. In
the facts and circumstances of the case and in the light of
the fact that the defendant has been in occupation of the
property for quite a long period, it is felt that four months’
time may be granted to him to vacate the premises.
13. In the result, this appeal is dismissed,
confirming the Judgment and decree of the courts below,
on condition that the appellant files an affidavit within two
weeks from today before the Trial Court to the effect that
he shall unconditionally vacate the premises within a period
of four months from today. Till such time, the execution of
the decree shall be kept in abeyance.
P.BHAVADASAN, JUDGE
sta
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