High Court Kerala High Court

P.Narasimha Shenoi vs K.Kishanna Rai on 24 June, 2009

Kerala High Court
P.Narasimha Shenoi vs K.Kishanna Rai on 24 June, 2009
       

  

  

 
 
  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.
                 --------------------------------------
                    S.A.NO. 623 OF 1995 G
                 --------------------------------------
                 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.