{"id":67350,"date":"2010-01-06T00:00:00","date_gmt":"2010-01-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kodiyil-eachal-nalakath-usman-vs-p-k-kadeesumma-on-6-january-2010"},"modified":"2015-08-22T12:49:58","modified_gmt":"2015-08-22T07:19:58","slug":"kodiyil-eachal-nalakath-usman-vs-p-k-kadeesumma-on-6-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kodiyil-eachal-nalakath-usman-vs-p-k-kadeesumma-on-6-january-2010","title":{"rendered":"Kodiyil Eachal Nalakath Usman vs P.K.Kadeesumma on 6 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kodiyil Eachal Nalakath Usman vs P.K.Kadeesumma on 6 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRSA.No. 635 of 2003()\n\n\n1. KODIYIL EACHAL NALAKATH USMAN\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. P.K.KADEESUMMA,\n                       ...       Respondent\n\n2. KODYIL EACHAL NALAKATH KHADEEJA,\n\n3. PAZHAEKKOTTAL MAYAN,\n\n4. BROTHER - DO - MUHAMMED, AGED 21,\n\n5. DO. UMMER S\/O. KUTTIATHA, AGED 19,\n\n6. PAZHAYAKOTTAL BEEYACHUMMA,\n\n7. SON DO. ASHRAFF, AGED 22, BUSINESS\n\n8. SISTER DO. KUNHAMI, AGED 20\n\n9. BROTHER - DO - THAJUDDIN, AGED 19, DO.\n\n10. SUPPL.10.  KEN, KADEEJA,\n\n11. CHILDRAN KEN.ISMAIL,\n\n12. YOUNGER SISTER KEN SUHARA,\n\n13. YOUNGER BROTHER KEN SADIQUE,\n\n14. SUPPL.14. KODIYIL EACHAL NALAKATH AYISHA\n\n15. DO. YAHIA ALI D\/O. MAMMALI,\n\n16. DO.REMLA D\/O. MAMMALI, AGED 26,\n\n                For Petitioner  :SRI.C.KHALID\n\n                For Respondent  :SRI.CIBI THOMAS\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :06\/01\/2010\n\n O R D E R\n                             THOMAS P. JOSEPH, J.\n                           --------------------------------------\n                              R.S.A.No.635 of 2003\n                           --------------------------------------\n                    Dated this the 6th day of January, 2010.\n\n\n                                     JUDGMENT\n<\/pre>\n
        The Regular Second Appeal arises from judgment and decree of learned<\/p>\n
Principal Sub Judge, Thalassery in A.S.No.23 of 1998 arising from judgment<\/p>\n
and decree of learned Munsiff, Kuthuparamba in O.S.No.24 of 1979. Suit is for<\/p>\n
declaration of leasehold right and recovery of possession of a shoproom. Trial<\/p>\n
court dismissed the suit. That is confirmed by the first appellate court. Hence<\/p>\n
the Second Appeal.      During the pendency of the proceedings, the original<\/p>\n
plaintiff transferred her right in favour of plaintiff No.2.        She died pending<\/p>\n
proceedings. But in the light of the assignment in favour of plaintiff No.2 her<\/p>\n
legal representatives were not impleaded. Parties are referred to as plaintiffs<\/p>\n
and defendants as in the trial court for convenience.\n<\/p>\n
        2.    Deceased defendant No.1 is the brother and thavazhi karanavan of<\/p>\n
deceased plaintiff No.1 and defendant No.3. Originally deceased plaintiff No.1<\/p>\n
wanted recovery of possession of the shoproom from deceased defendant No.1<\/p>\n
and his children alleging that the shoproom was taken on lease by herself and<\/p>\n
defendant No.3 from the wife and children of Savan Haji. According to her as<\/p>\n
per Ext.A1, sreedhana deed executed by deceased defendant No.1 she got right<\/p>\n
over a shoproom situated near Kuthuparamba bus stand which was entrusted to<\/p>\n
the said Savan Haji as per a rent deed dated 1.3.1947. As per the directions in<\/p>\n
Ext.A1 if    rent of the shoproom exceeded Rs.120\/- per month, the excess<\/p>\n
RSA No.635\/2003<\/p>\n
                                        2<\/span><\/p>\n
amount was to be paid to defendant No.3. While so, to accommodate her<\/p>\n
children deceased plaintiff No.1 asked Savan Haji to vacate the said room.<\/p>\n
There was a mediation in the presence of deceased defendant No.1 and in that<\/p>\n
mediation the    shoproom belonging to the wife and children of Savan Haji was<\/p>\n
entrusted to deceased plaintiff No.1 and defendant No.3 as per a kaichit dated<\/p>\n
13.5.1966. The same day a lease deed was executed in favour of Savan Haji in<\/p>\n
respect of the room referred to in Ext.A1. Plaintiff No.1 alleged that defendant<\/p>\n
No.3 was not available to join as a plaintiff and hence she was impleaded as a<\/p>\n
defendant and sought recovery of possession of the schedule room on behalf of<\/p>\n
deceased plaintiff No.1 and defendant No.3. According to deceased plaintiff<\/p>\n
No.1, her children were conducting business in the schedule room under the<\/p>\n
supervision of deceased defendant No.1 but the latter managed to create a<\/p>\n
document (concerning the business) in favour of defendant No.2, his daughter.<\/p>\n
Defendant Nos.1 and 2 denied that deceased defendant No.1 was looking after<\/p>\n
the affairs of deceased plaintiff No.1 and defendant No.3. It is incorrect to say<\/p>\n
that deceased defendant No.1 created false documents. They admitted that the<\/p>\n
schedule room was leased to deceased plaintiff No.1 and defendant No.3 as<\/p>\n
per kaichit dated 13.5.1966. According to them on 30.8.1967 deceased plaintiff<\/p>\n
No.1 and defendant No.3 created an oral lease in favour of deceased defendant<\/p>\n
No.1 for a rent of Rs.45\/- per month and the rent was paid till 30.3.1978 to<\/p>\n
Kadheeja, daughter of deceased plaintiff No.1 and her husband. They claimed<\/p>\n
that the business belonged to deceased defendant No.1 and that the license for<\/p>\n
RSA No.635\/2003<\/p>\n
                                          3<\/span><\/p>\n
the same was taken in the name of defendant No.2. Deceased plaintiff No.1<\/p>\n
filed I.A.No.2160 of 1983 for amendment of the plaint to state that defendant<\/p>\n
No.3 has no right or interest in the shoproom and that the lease is exclusively in<\/p>\n
favour of deceased plaintiff No.1. She alleged that deceased defendant No.1<\/p>\n
mischievously got the name of defendant No.3 also included in the lease deed<\/p>\n
dated 13.5.1966 executed in favour of wife and children of Savan Haji in respect<\/p>\n
of the schedule room. The application was opposed by defendant Nos.1 and 2.<\/p>\n
Learned Munsiff dismissed I.A.No.2160 of 1983. Learned Munsiff granted a<\/p>\n
decree in favour of deceased plaintiff No.1 for recovery of possession of the<\/p>\n
schedule room on behalf of herself and on behalf of defendant No.3 and<\/p>\n
rejecting the plea of oral lease in favour of deceased defendant No.1.<\/p>\n
Defendant Nos.1 and 2 challenged the judgment and decree in A.S.No.230 of<\/p>\n
1984.    Deceased plaintiff No.1 filed cross-objection challenging dismissal of<\/p>\n
I.A.No.2160 of 1983. In the meantime defendant No.3 assigned the half share<\/p>\n
she claimed in the lease hold right over the schedule room to defendant Nos.1,<\/p>\n
2 and 7 to 9 on 9.11.1984. Defendant Nos.1 and 2 filed I.A.No.91 of 1986 to<\/p>\n
amend the appeal memorandum stating that deceased plaintiff No.1 who has<\/p>\n
only half share in the leasehold right is not entitled to recover possession of the<\/p>\n
schedule room from defendant Nos.1, 2 and 7 to 9 who acquired the remaining<\/p>\n
half share from defendant No.3. Learned Sub Judge who heard the appeal<\/p>\n
allowed I.A.Nos.2160 of 1983 and 91 of 1986. Judgment and decree of learned<\/p>\n
Munsiff were set aside as per judgment dated 10.2.1987 and the case was<\/p>\n
RSA No.635\/2003<\/p>\n
                                        4<\/span><\/p>\n
remanded to the trial court for disposal after incorporating the amendments. As<\/p>\n
per amendment of the plaint paragraph No.2 has been deleted and a new<\/p>\n
paragraph has been incorporated which          stated that the shoproom in the<\/p>\n
possession of Savan Haji was assigned to deceased plaintiff No.1 as her<\/p>\n
sreedhana by deceased defendant No.1 as per Ext.A1 dated 15.1.1945,<\/p>\n
defendant No.3 has only a right to collect the profit beyond Rs.120\/- accordingly<\/p>\n
Savan Haji was paying Rs.21.25 per month to deceased plaintiff No.1 and<\/p>\n
Rs.7.50 per month     to defendant No.3. When deceased plaintiff No.1 wanted<\/p>\n
Savan Haji to vacate the said room there was a mediation involving deceased<\/p>\n
defendant No.1 and others and a settlement was reached.              As per that,<\/p>\n
schedule room belonging to the wife and children of Savan Haji was entrusted to<\/p>\n
deceased plaintiff No.1 as per kaichit dated 13.5.1966. But it is later learnt that<\/p>\n
deceased defendant No.1 mischievously included the name of defendant No.3<\/p>\n
also in the lease deed. The lease deed is in the possession and custody of<\/p>\n
deceased defendant No.1.       Deceased plaintiff No.1 learned that      name of<\/p>\n
defendant No.3 also was included in the kaichit dated 13.5.1966 in respect of the<\/p>\n
schedule room as she was entitled to receive Rs.7.50 from Savan Haji in respect<\/p>\n
of the room referred to in Ext.A1 and belonging to deceased plaintiff No.1. But,<\/p>\n
defendant No.3 has no right in the schedule room and the lease is exclusively in<\/p>\n
favour of deceased plaintiff No.1. While so defendant No.1 died on 23.10.1988.<\/p>\n
Defendant Nos.2 and 7 to 13 are the legal representatives.           Plaintiff No.1<\/p>\n
assigned her leasehold right over the schedule room to additional plaintiff No.2<\/p>\n
RSA No.635\/2003<\/p>\n
                                           5<\/span><\/p>\n
as per registered deed dated 11.11.1988.           After amendment of the plaint<\/p>\n
defendant Nos.1, 2 and 7 to 9 filed additional written statement denying that<\/p>\n
lease of the schedule room was exclusively in favour of deceased plaintiff No.1.<\/p>\n
They asserted that lease was in favour of deceased plaintiff No.1 and defendant<\/p>\n
No.3.    They claimed that as per a registered document dated 9.11.1984,<\/p>\n
defendantNo.3 assigned her half share in the leasehold right to defendant Nos.1,<\/p>\n
2 and 7 to 9 and hence they are not liable to be evicted at the instance of<\/p>\n
deceased plaintiff No.1 who is only a co-sharer of the leasehold right. Leaned<\/p>\n
Munsiff found on the evidence (after the remand) that claim of defendant Nos.1<\/p>\n
and 2 that deceased defendant No.1 is a lessee of the schedule room is not<\/p>\n
correct but learned Munsiff was not inclined to accept the case of plaintiffs that<\/p>\n
the lease of the shoproom was exclusively in favour of deceased plaintiff No.1.<\/p>\n
Learned Munsiff held that there is no evidence to show the        exclusive right of<\/p>\n
deceased plaintiff No.1 over the schedule room. The assignment of half share of<\/p>\n
leasehold right of defendant No.3 in favour of defendant Nos.1, 2 and 7 to 9 was<\/p>\n
found to be valid and hence it was held that additional plaintiff No.2 was not<\/p>\n
entitled to evict the defendants. Holding so, the suit was dismissed. That has<\/p>\n
been confirmed      by the first appellate court.     Hence, the Second Appeal.<\/p>\n
Following substantial questions of law are framed for a decision:<\/p>\n
       i.     Whether the stipulation in Ext.A1, sreedhana deed imposing an<\/p>\n
obligation that plaintiff No.1 shall pay to her nieces who are not parties to Ext.A1,<\/p>\n
income whenever it exceeds Rs.120\/- per year would create a co-ownership right<\/p>\n
RSA No.635\/2003<\/p>\n
                                           6<\/span><\/p>\n
in the property or affect the absolute title vested in the plaintiff No.1?<\/p>\n
        ii.    Whether an obligation attached to the property gifted, can be validly<\/p>\n
transferred to a lease deed in respect of another property, so as to make it a co-<\/p>\n
ownership property?\n<\/p>\n
        iii.   Whether lease deeds created without consent or knowledge of<\/p>\n
plaintiff No.1 would be binding on her and would affect her title to the properties?<\/p>\n
        iv.    Whether by acquisition of landlord’s right of a leasehold building,<\/p>\n
the tenancy will not merge with the superior right of ownership and preclude the<\/p>\n
the owner from claiming tenancy right?\n<\/p>\n
        3.     It is contended by learned counsel for supplemental plaintiff No.2<\/p>\n
that the courts below misread the evidence on record to hold that exclusive<\/p>\n
leasehold right of deceased plaintiff No.1 in respect of the schedule room is not<\/p>\n
proved. Learned counsel submitted that courts below did not take into account<\/p>\n
that this is an uneven battle between a poor, illiterate lady (deceased plaintiff<\/p>\n
No.1) and an intelligent     and scheming advocate clerk (deceased defendant<\/p>\n
No.1). According to the learned counsel there is no evidence to show that<\/p>\n
defendant No.3 had any leasehold right over the schedule room.              Learned<\/p>\n
counsel has drawn my attention to the evidence of DW3, one of the defendants<\/p>\n
and husband of defendant No.3. Learned counsel for contesting defendants per<\/p>\n
contra argued that none of the substantial questions of law framed do arise for<\/p>\n
a decision in this case since those questions either         related to the right of<\/p>\n
defendant No.3 in the shoproom in the possession of Savan Haji and referred to<\/p>\n
RSA No.635\/2003<\/p>\n
                                       7<\/span><\/p>\n
in Ext.A1 which is not germane for consideration in this case, or a decision of the<\/p>\n
courts below on evidence which did not involve any substantial question of law.<\/p>\n
Learned counsel submitted that on evidence courts below were not inclined to<\/p>\n
accept the case of plaintiffs that leasehold right exclusively belonged to<\/p>\n
deceased plaintiff No.1 and accordingly the suit was dismissed. That according<\/p>\n
to the learned counsel involved no substantial question of law requiring<\/p>\n
interference by this Court.\n<\/p>\n
       4.     The suit was filed in the year 1979.        Accepting the case of<\/p>\n
deceased plaintiff No.1 that lease in respect of schedule room is in favour of<\/p>\n
herself and defendant No.3, learned Munsiff initially granted decree for eviction.<\/p>\n
It is as per order dated 10.2.1987 on I.A.No.2160 of 1983 that         plaint was<\/p>\n
amended. It is averred in the plaint by amendment that defendant No.3 has no<\/p>\n
right over the schedule room and that name of defendant No.3 happened to be<\/p>\n
in the kaichit dated 13.5.1966 on account of a mischief played by deceased<\/p>\n
defendant No.1.      Deceased plaintiff No.1 was under the impression that<\/p>\n
deceased defendant No.1 included the name of defendant No.3 also in the<\/p>\n
kaichit dated 13.5.1966 executed in favour of wife and children of Savan Haji<\/p>\n
because defendant No.3 was entitled to receive Rs.7.50 per month from Savan<\/p>\n
Haji in respect of the shoproom referred to in Ext.A1. In otherwords, right from<\/p>\n
13.5.1966 upto the filing of I.A.No.2160 of 1983 atleast for about 17 years<\/p>\n
deceased plaintiff No.1 was of the view that lease in respect of the schedule<\/p>\n
room was in favour of herself and defendant No.3. What she stated in the plaint<\/p>\n
RSA No.635\/2003<\/p>\n
                                         8<\/span><\/p>\n
originally is that she is seeking recovery of possession on behalf of herself and<\/p>\n
defendant No.3 and that the latter was impleaded as such only because she was<\/p>\n
not available to join as a plaintiff. It is not disputed by the deceased plaintiff<\/p>\n
No.1 that in the kaichit dated 13.5.1966 defendant No.3 is shown as a co-tenant<\/p>\n
of the schedule room along with deceased plaintiff No.1. According to deceased<\/p>\n
plaintiff No.1, the lease deed is in the custody of deceased defendant No.1 but,<\/p>\n
he denied that. Lease deed dated 13.5.1966 is not available in this case but,<\/p>\n
fact remained that in that lease deed defendant No.3 is also shown as a co-<\/p>\n
tenant of the schedule room along with deceased plaintiff No.1.           Now the<\/p>\n
question for consideration is whether courts below are legally correct in holding<\/p>\n
that plaintiffs have not shown that the lease is exclusively in favour of deceased<\/p>\n
plaintiff No.1 and that defendant No.3 is only a name lender in the lease deed<\/p>\n
merely for the reason that she was entitled to receive Rs.7.50 per month from<\/p>\n
Savan Haji in respect of the shoproom referred to in Ext.A1.<\/p>\n
        5.      The substantial questions of law      Nos.1 and 2 framed are in<\/p>\n
respect of the respective right of deceased plaintiff No.1 and defendant No.3 in<\/p>\n
the shoproom in the possession of Savan Haji and referred to in Ext.A1. In my<\/p>\n
view it is not necessary to enter into a decision as to the nature and character of<\/p>\n
right defendant No.3 has in the        said shoproom in this proceeding      since<\/p>\n
question for consideration is only whether courts below are legally correct in<\/p>\n
holding that the case of deceased plaintiff No.1 as per the amended plaint that<\/p>\n
lease in respect       of   the schedule room       is exclusively in her favour<\/p>\n
RSA No.635\/2003<\/p>\n
                                          9<\/span><\/p>\n
notwithstanding that kaichit dated 13.5.1966 mentioned defendant No.3 also as<\/p>\n
a co-tenant along with her is not established. Therefore question Nos.1 and 2 do<\/p>\n
not arise for a decision in this appeal.\n<\/p>\n<\/p>\n
       6.      Now the crucial question is whether the courts below are justified in<\/p>\n
holding against the claim of plaintiffs that the exclusive lease hold right over the<\/p>\n
shoproom remained with deceased plaintiff No.1.              Learned counsel for<\/p>\n
supplemental plaintiff No.2 has referred to me the oral and documentary<\/p>\n
evidence adduced by the parties. The documents produced by the defendants<\/p>\n
are in respect of the claim made by defendant Nos.1 and 2 regarding the oral<\/p>\n
lease in favour of deceased defendant No.1. Learned Munsiff found that those<\/p>\n
documents are either not acceptable or not sufficient to prove the alleged oral<\/p>\n
lease    in favour of deceased defendant No.1 and disbelieved the case of<\/p>\n
defendant Nos.1 and 2 regarding that oral lease. That finding is not sufficient to<\/p>\n
hold in favour of supplemental plaintiff No.2 or against the contesting defendants<\/p>\n
regarding the exclusive leasehold right of deceased plaintiff No.1 in the schedule<\/p>\n
room.    I stated that the kaichit dated 13.5.1966 is not before court whatever be<\/p>\n
the reason thereof. There is no evidence to show that the said kaichit was in<\/p>\n
the custody of deceased defendant No.1 and has been withheld by him.<\/p>\n
Plaintiffs did not take steps to examine landlords of the schedule room, wife and<\/p>\n
children of Savan Haji to show          with whom the rental arrangement was.<\/p>\n
According to the plaintiffs, Savan Haji was siding with the defendants but there<\/p>\n
RSA No.635\/2003<\/p>\n
                                         10<\/span><\/p>\n
is no evidence in that line and at any rate that         does not absolve the<\/p>\n
responsibility of plaintiffs to examine the landlords and prove that the lease is<\/p>\n
exclusively in her favour. Particularly in view of the admitted fact that the rent<\/p>\n
deed mentioned       defendant No.3 also as a co-tenant and in view of the<\/p>\n
averments in the plaint originally made and incorporated by amendment.<\/p>\n
Exts.B2 to B14 related to claim of defendant Nos.1 and 2 regarding oral lease<\/p>\n
in favour of defendant No.1 and hence are not relevant for consideration in the<\/p>\n
Second Appeal. Exts.X1 to X4 are produced by Savan Haji as per the direction<\/p>\n
of the trial court (he was not examined as a witness). Ext.X1 is a reply notice<\/p>\n
dated 17.1.1972 issued to plaintiff No.1 on behalf of Savan Haji. It refers to the<\/p>\n
kaichit dated 16.9.1949 executed by Savan Haji in respect of the shoproom<\/p>\n
covered by Ext.A1 in favour of plaintiff No.1 and defendant No.3. Ext.X1 states<\/p>\n
that thereafter plaintiff No.1 and defendant No.3 demanded vacant possession of<\/p>\n
the said room and there was a mediation and settlement. As per that settlement,<\/p>\n
schedule room belonging to the wife and children of Savan Haji was given to<\/p>\n
‘your clients’ for business of plaintiff No.1 and defendant No.3. There is also<\/p>\n
reference to    the kaichit in favour of the    wife and children of Savan Haji<\/p>\n
executed on 13.5.1966. Ext.X1 gives the impression that to the notice issued to<\/p>\n
Savan Haji on behalf of deceased plaintiff No.1 and defendant No.3 he had<\/p>\n
replied that schedule room was taken on rent by deceased plaintiff No.1 and<\/p>\n
defendant No.3 for their business.      Ext.X2 is another notice dated 7.7.1972<\/p>\n
issued to Savan Haji on behalf of deceased plaintiff No.1 where, the statements<\/p>\n
RSA No.635\/2003<\/p>\n
                                         11<\/span><\/p>\n
in Ext.X1 are denied . Ext.X2 states that the schedule room was taken on rent<\/p>\n
and business is being run by defendant No.1. It is interesting to note from<\/p>\n
Ext.X2 that it is stated on behalf of deceased plaintiff No.1 that she has no<\/p>\n
interest at all in the schedule room and that the said room was given to<\/p>\n
defendant No.1 in violation of the premise given by Savan Haji to deceased<\/p>\n
plaintiff No.1. Ext.X3 is the reply to Ext.X2 on behalf of Savan Haji where he<\/p>\n
asserted his statements in Ext.X1. Ext.X4 is a notice dated 12.6.1974 issued to<\/p>\n
Savan Haji on behalf of deceased plaintiff No.1 as instructed by supplemental<\/p>\n
plaintiff No.2. There, it is stated that Savan Haji and defendant No.1 fabricated<\/p>\n
documents. DW2, an advocate was examined to prove Exts.X1 to X4. Trial<\/p>\n
court was not inclined to act upon the evidence of DW2 and Exts.X1 to X4 on the<\/p>\n
premise that the notices and replies caused to be issued on behalf of deceased<\/p>\n
plaintiff No.1 by deceased defendant No.1 who was an advocate clerk. Even if it<\/p>\n
is assumed that Exts.X1 to X4 are issued at the instance of deceased defendant<\/p>\n
No.1 that does not in any way advance the case of deceased plaintiff No.1 that<\/p>\n
she is the exclusive lessee of the schedule room. Thus documentary evidence<\/p>\n
do not in any way support the case of deceased plaintiff No.1 and instead,<\/p>\n
Exts.X1 to X4 would defeat her case.\n<\/p>\n
        7.    So far as the oral evidence is concerned, deceased plaintiff No.1<\/p>\n
spoke as PW1. Her evidence would show that she has no idea about the<\/p>\n
shoproom or the rental arrangements. But she originally stated in the plaint<\/p>\n
that lease was in favour of herself and defendant No.3, that allegation stood for<\/p>\n
RSA No.635\/2003<\/p>\n
                                        12<\/span><\/p>\n
years and later she got the plaint amended to say that the lease is exclusively for<\/p>\n
herself and defendant No.3 is only a name lender in the kaichit. Deceased<\/p>\n
defendant No.1 was examined as DW1.          Learned counsel for supplemental<\/p>\n
plaintiff has referred to me the evidence of DW1 and stated that evidence lacks<\/p>\n
consistency and truthfulness. Evidence of DW1 is confronted with Exts.A8 and<\/p>\n
9. True, evidence given by DW1 is inconsistent but, he has given evidence on<\/p>\n
behalf of himself and defendant No.2 regarding the alleged oral lease in his<\/p>\n
favour and not regarding the lease in respect of the shoproom in favour of<\/p>\n
deceased plaintiff No.1 and defendant No.3.        At one stage,     he pleaded<\/p>\n
ignorance about the lease in favour of deceased plaintiff No.1 and defendant<\/p>\n
No.3. Even if it is assumed that the evidence of DW1 is not reliable that only<\/p>\n
concerned his claim and cannot affect the legal representatives of defendant<\/p>\n
No.3 and their case that defendant No.3 was a co-tenant of the schedule room<\/p>\n
along with plaintiff No.1. DW3 is the husband of defendant No.3 and himself,<\/p>\n
a defendant. He stated that the lease was in favour of deceased plaintiff No.1<\/p>\n
and defendant No.3. But, ofcourse in cross-examination he stated that he does<\/p>\n
not know who was liable to pay rent of the schedule room to the wife and<\/p>\n
children of Savan Haji. Himself or defendant No.3 has not so far given rent to<\/p>\n
Savan Haji. Even if it is so assumed I must bear in mind that there is          no<\/p>\n
evidence to show that rent was paid by deceased plaintiff No.1 alone at any rate,<\/p>\n
for her alone. I must also bear in mind that original averments in the plaint<\/p>\n
were that lease was in favour of deceased plaintiff No.1 and defendant No.3<\/p>\n
RSA No.635\/2003<\/p>\n
                                      13<\/span><\/p>\n
and recovery of possession      the schedule room was sought on behalf of<\/p>\n
defendant No.3 as well. Having stated so, the burden was heavier on plaintiffs<\/p>\n
to show that the said statement was not correct and that the lease was<\/p>\n
exclusively in favour of deceased plaintiff No.1. So far as DW4 is concerned,<\/p>\n
his evidence is of no relevance as he was examined to prove the alleged oral<\/p>\n
lease in favour of defendant No.1. I have gone through the evidence and<\/p>\n
considered the submission made by learned counsel on both sides. There is no<\/p>\n
acceptable or reliable evidence to show that lease was exclusively in favour of<\/p>\n
deceased plaintiff No.1. There is no material to hold, notwithstanding that in the<\/p>\n
kaichit dated 13.5.1966 defendant No.3 is also mentioned as a lessee of the<\/p>\n
schedule room      that deceased plaintiff No.1 alone was the tenant of the<\/p>\n
schedule room. So much so courts below are legally justified in holding against<\/p>\n
deceased plaintiff No.1 in that regard.    No substantial question of law       is<\/p>\n
involved as the finding of the courts below rest on an appreciation of the<\/p>\n
evidence.\n<\/p>\n
       Resultantly, the Regular Second Appeal fails. It is accordingly dismissed.<\/p>\n
No cost.\n<\/p>\n<\/p>\n
                                               THOMAS P.JOSEPH,
\n                                                       Judge.\n<\/p>\n
cks<\/p>\n
RSA No.635\/2003<\/p>\n
                   14<\/span><\/p>\n
                      Thomas P.Joseph, J.\n<\/p>\n
                      R.S.A.No.635 of 2003<\/p>\n
                      JUDGMENT<\/p>\n
                      6th January, 2010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kodiyil Eachal Nalakath Usman vs P.K.Kadeesumma on 6 January, 2010 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-67350","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKodiyil Eachal Nalakath Usman vs P.K.Kadeesumma on 6 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kodiyil-eachal-nalakath-usman-vs-p-k-kadeesumma-on-6-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kodiyil Eachal Nalakath Usman vs P.K.Kadeesumma on 6 January, 2010 - 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