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2008 DIGILAW 749 (KER)

Sainaba v. Syed Jaffer Aydeed

2008-11-28

P.R.RAMAN, T.R.RAMACHANDRAN NAIR

body2008
Judgment :- P.R. Raman, J. Defendants are the revision petitioners. Respondent herein filed O.S. 50/2003 before the Wakf Tribunal, Kozhikode against one Bapputty who was the predecessor-in-interest of the petitioners herein. The suit was one for getting vacant possession of the plaint schedule property and for damages for use and occupation. During the pendency of the proceedings, Bapputty died and the petitioners herein got themselves impleaded as his legal representatives, in the suit. According to the plaintiff, the plaint schedule shop room belonged to his father Puthiya Maliyakkal Syed Hassan Aydeed which forms part of a commercial building complex, put up by him, that Bapputty was a tenant in the plaint schedule property under his father based on an oral lease agreeing to pay a monthly rent of Rs. 500 (Rupees five hundred) per month and the lease was initially for a period of three months, that Ext. A-1 is a Wakf deed executed by the father of the plaintiff with respect to the plaint schedule property in the year 1998, and the plaintiff was made Muthavalli of the Wakf, that after Ext. A-1 the original tenant Bapputty atoned to the plaintiff and was paying rent to him in the capacity as Muthavally of the Wakf, that while so, the tenancy was terminated by issuing notice evidenced by Ext. A-4 and A-6, that since the lease was thus terminated, the defendant was not entitled to continue in possession of the plaint schedule building, that possession after termination of the lease by the defendant is that of a trespasser and hence the plaintiff is entitled to get damages for user and occupation at the rate of Rs. 2,000 per month which is the prevalent rate in the locality. Since possession is not surrendered the suit was instituted. 2. The defendant in his written statement contended that the suit is not maintainable, that the averment regarding entrustment etc. are not correct, that the property where his shop room is situated originally belonged to one Variyamthodi Achuthan Nair from whom he took the property on a monthly rent of Rs. Since possession is not surrendered the suit was instituted. 2. The defendant in his written statement contended that the suit is not maintainable, that the averment regarding entrustment etc. are not correct, that the property where his shop room is situated originally belonged to one Variyamthodi Achuthan Nair from whom he took the property on a monthly rent of Rs. 15 in the year 1955 and thereupon, he constructed a shed in the property and doing business there, that the landlord later assigned his right over the property in favour of Kurungattil Assya who demolished the shed situated there and constructed a new building there in the year 1962, that the defendants took the plaint schedule room and varandhas on three sides on lease on a monthly rent of Rs. 75 from the son- in-law ofAssya, that since then the defendant had been in possession of the property, that the rent was subsequently enhanced to Rs. 125, that later he enclosed the varandah on the three sides of the room with the knowledge of the landlord after spending Rs. 25,000, that eastern portion of the room and a portion of the southern varandah were entrusted to the brother of the first defendant on a monthly rent of Rs. 45 and he is in possession of the same, that it is for security of the room that he extended the same, that the building now possessed is not owned by the landlord, that the extended portion stands on a purampoke land, that rent was enhanced on several occasions and from 1993 onwards rent was Rs. 500 per month, that though the alleged Wakf created in respect of the plaint schedule property is not valid and the same is intended to exclude the property from the purview of the Kerala Buildings (Lease and Rent Control) Act, that the plaintiff is not entitled to claim any amount by way of use and occupation and if at all, the maximum rent prevailing in the area is Rs. 750 per month, that the valuation shown in the plaint and court fee paid are not correct and hence the suit is liable to be dismissed. 3. After the death of the first defendant, supplementary defendants 2 to 9 were impleaded. They filed separate written statement taking the same contentions as was taken by the first defendant in the original written statement. 4. 3. After the death of the first defendant, supplementary defendants 2 to 9 were impleaded. They filed separate written statement taking the same contentions as was taken by the first defendant in the original written statement. 4. The court below framed necessary issues. PW. 1 was examined on the side of the plaintiff and Exts. A-1 toA-7 were marked. No evidence either oral or documentary, was adduced by the defendants. The court below, found in issue No. 3 that the valuation shown in the plaint and court fee paid are correct. It was also found that Ext. A-1 is a Wakf deed and the property has become Wakf property, that the plaintiff is the Muthavally appointed as per Ext. A-1, that the Wakf is created for religious and charitable purposes and the income derived therefrom are being utilized for that purpose, that subsequent to Ext. A-1 the defendant was duly informed to pay the rent to the plaintiff and he had been paying the same to the plaintiff, that the Wakf was also registered with the Wakf Board as Ext. A-3 is the certificate to that effect and that the building is already exempted from the purview of the Kerala Buildings (Lease & Rent Control) Act. It was also found that the tenancy is admitted as is evident from Ext. A-5 reply sent by the tenant and that his only contention is that he is in possession of more area than taken by him on lease. After analyzing the entire evidence on record, it was found that the tenancy in favour of the defendant is terminated. It went on to consider the question as to whether the plaint schedule property is a Wakf property and held that the plaintiff's predecessor Hassan Aydeed was the owner of the property and the defendant had also admitted that Hassan Aydeed constructed a commercial complex after demolishing the defendant's shed allegedly put on the land taken on lease by him. The defendant was paying rent as admitted in Exts. A-5 and A-7. Thus, he was a building tenant under the plaintiff. The defendant was paying rent as admitted in Exts. A-5 and A-7. Thus, he was a building tenant under the plaintiff. Referring to the contention of the defendant that he has been in possession of more extent in area of land on the three sides of the building and that it is a purampoke land, it was found that the said contention was not supported by any evidence adduced before court to show that defendant is in possession of any purampoke land or extended the building to the purampoke land by spending Rs. 25,000. The defendant did not even enter the box to depose in support of the contention raised in his written statement. Following the dictum laid down by the Apex Court in IswarBhai C. Patel v. Harihar Behera (AIR 1999 SC 1341) it was held that an adverse inference can be drawn against the defendant as contemplated under S.114 (g) of the Evidence Act. Reference was also made to the decision of the Apex Court in Vidhyadhar v. Manikarao (1999 (3) Supreme 102) wherein it was held that when a party to suit abstains from entering witness box, adverse inference against him would arise that the case set up by him is not correct. In these circumstances, and following the aforesaid decisions, it was held that an adverse inference has to be drawn against the defendant and his case that he is in possession of more extent of land was held incorrect. It was further found that the property was being used as a Wakf property and Ext. A-3 is the document by which Wakf was registered with the Wakf Board, the defendant is not entitled to get protection under Act 2/1965 since as per notification S.R.O. 47/82 Government of Kerala exempted the building owned by the Wakf registered under the Wakf'sAct from the provisions of the Kerala Buildings (Lease and Rent Control Act), that on termination of the tenancy since the property was not surrendered, the plaintiff is entitled to get Rs. 750 per month for damages towards use and occupation. Accordingly, the suit was decreed with the costs of the plaintiff. Challenging the said judgment and decree passed by the Court below, the defendant has filed this revision. 5. We have heard the parties. 750 per month for damages towards use and occupation. Accordingly, the suit was decreed with the costs of the plaintiff. Challenging the said judgment and decree passed by the Court below, the defendant has filed this revision. 5. We have heard the parties. Learned counsel appearing on behalf of the revision petitioner has contended that since the defendant has disputed the title of the landlord in respect of the encroached portion, the court fee payable is under S.30 of the Court Fees Act and the court fee paid is under S.43. So according to him, the Tribunal erroneously held that S.43 applies to the case. As per S.43 of the Court Fees Act, in a suit between the landlord and tenant for enhancement of rent or for recovery of immovable property from which a tenant has been illegally ejected by the landlord or for establishing or disproving a right of leasehold, fee shall be levied on the amount of rent for the immovable property to which the suit relates, payable for the year next before the date of presenting the plaint. Further, in a suit for recovery of immovable property from a tenant including a tenant holding over after the termination of a tenancy, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint. 6. The plaintiff in this case has valued the suit at Rs. 6,750 (Rs. 6,000 representing one years' rent prior to the institution of the suit, Rs. 500 towards arrears from 1.6.2000 to 30.6.2000 and Rs. 250 towards cost of Lawyer notice) and paid court fee payable under S.43 of the Act, though by mistake he has referred to S.30 of the Act. In this case, the landlord-tenant relation of the parties is not disputed and even according to the defendant he has atoned to the plaintiff and has been paying rent. Merely because the defendant has raised a contention that he has extended the tenanted premises by encroaching upon the purampoke land, the suit cannot be treated as a title dispute. In this case, the landlord-tenant relation of the parties is not disputed and even according to the defendant he has atoned to the plaintiff and has been paying rent. Merely because the defendant has raised a contention that he has extended the tenanted premises by encroaching upon the purampoke land, the suit cannot be treated as a title dispute. S.43 deals with suit between the landlord and tenant and as per S.43(2) of the Act, a suit for recovery of immovable property from a tenant including a tenant holding over after the termination of a tenancy, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint. In a suit between the landlord and tenant, S.30 has no application and thus, court fee actually paid under S.43 is correct. 7. The next point arises for consideration is as to whether the building in question is a Wakf property. Ext. A-1 is a registered document and as per Ext. A-1 Wakf deed the plaintiff was appointed as the Muthavalli. According to the plaintiff, the Wakf was created for religious and charitable purposes and the income from the property are being utilized for the said purpose. The Wakf was also registered before the Kerala Wakf Board and Ext. A-3 is the certificate issued by the Wakf Board to that effect. The contention of the revision petitioner is that as per Ext. A-1, 50% of the income derived from the property is earmarked for the members of the family of the settler himself and so it is not a Wakf property. We have gone through Ext. A-1 Wakf deed. What is provided under Ext. A-1 is that 50% of the income derived from the property is to be spent for charitable purposes to members of the family of the settler who are poor and for other charitable purposes. We may now extract the exact word used in Ext.A-1 in this regard. 8. As per S.3(a) of the Mussalman Wakf Validating Act, 1913, it shall be lawful for any person professing Mussalman faith to create a Wakf which in all other respects is in accordance with the provisions of Mussalman Law, for the maintenance and support wholly or partially of his family, children or descendants. 8. As per S.3(a) of the Mussalman Wakf Validating Act, 1913, it shall be lawful for any person professing Mussalman faith to create a Wakf which in all other respects is in accordance with the provisions of Mussalman Law, for the maintenance and support wholly or partially of his family, children or descendants. The very Act namely, the Mussalman Wakf Validating Act, 1913 was enacted to declare the right of Mussalman to set apart the property by way of Wakf in favour of their children and family members. Therefore, the contention now raised is contrary to the very object and purpose of the specific provisions contained in S.3(a) of the aforesaid Act and hence rejected. 9. Nextly it was contended that the defendant has encroached upon a purampoke land and thus extended the tenanted premises over which the landlord has no title and hence the plaintiff cannot recover the encroached portion in this regard. The specific admission made by the defendant in the written statement is that in order to have security for the rooms, he had extended the room. So the extension he has made is for protecting the tenanted premises. Though he would contend that he has extended the building encroaching upon the purampoke land, he had not even gone to the box to depose in support of the plea thus raised by him. It was in these circumstances, that the Tribunal held that an adverse inference could be drawn against him. When the defendant's case is that he has encroached upon a purampoke land and extended the tenanted premises, the entire burden lies on him to prove the same by adducing cogent evidence. There is absolutely, no evidence adduced by him. Therefore, whether as a matter of fact, there was any encroachment or not itself is not proved in the case. Besides, even assuming that any such encroachment was made by the defendant, that is only for protecting the tenanted premises even according to his own admission made in the written statement. As per S.108 (d) of the Transfer of Property Act, if during the continuance of the lease any accession is made to the property, such accession shall be deemed to be comprised in the lease, subject, of course, to the law relating to the alluvion for the time being in force. As per S.108 (d) of the Transfer of Property Act, if during the continuance of the lease any accession is made to the property, such accession shall be deemed to be comprised in the lease, subject, of course, to the law relating to the alluvion for the time being in force. Therefore, whatever extension made during the continuance of the lease, the defendant cannot claim any independent right over the same as it will be comprised in the lease itself. 10. Learned author Mulla in his commentaries on the Transfer of Property Act, under the caption "Encroachments", while dealing with the provisions contained in S.108 of the Transfer of Property Act, says that `the English rule as to accretions applies whether the accretion is caused by natural or artificial means, provided the means are lawful and the accretion is gradual. If the lessee encroaches upon adjoining land and acquires title thereto by prescription, he must surrender the land to the lessor at the expiry of the term whether the land be waste land or land of a stranger'. Reference was also made to Indu v. Atul (AIR 1925 Cal. 1114) and Nesbit v. Maplethorpe Urban Council ((1918) 2 KB 1). The true presumption is that the land so encroached upon is added to the tenure and forms part thereof, for the benefit of the tenant so long as the original holding continues, and afterwards for the benefit of the landlord. 11. In J.F. Perrott & Co. Ltd. v. Cohen ((1951) 1 KB 705) it has been held that if a lessee encroaches, the property encroached upon must be treated as part of the demised premises and the lessee must repair it under the covenant to repair. The Apex Court in Chapsibhai Dhanjibhai Dand v. Purushottam (AIR 1971 SC 1878) held thus: "Under S.108(d) of the Transfer of Property Act, if any accession is made to the leased property during the continuance of a lease, such accession is deemed to be comprised in the lease. If the accession is by encroachment by the lessee, and the lessee acquires title thereto by prescription, he must surrender such accession together with the leased land to the lessor at the expiry of the term. If the accession is by encroachment by the lessee, and the lessee acquires title thereto by prescription, he must surrender such accession together with the leased land to the lessor at the expiry of the term. The presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant so long as the lease continues and afterwards for the benefit of the landlord ............................... " 12. In Md. AhmedAmolia v. Nirmal Chandra Roy (AIR 1978 Cal. 312) the Calcutta High Court held as follows: "When a tenant encroaches on land outside his tenancy but belonging to his landlord he cannot acquire absolute title thereto by adverse possession but obtain only that right of tenancy under his landlord. It is equally well-settled that if a tenant encroaches on land contiguous to the land of his tenancy but belonging to other landlords, adverse possession by him by such encroachment would not give him an absolute title thereto but only a lease-hold interest in these lands under his own landlords." 13. From the above discussion of the case law on the subject and in the light of the specific provisions contained in S.108(d) of the Transfer of Property Act, it has to be held that even assuming that there is any encroachment made by the tenant extending the tenanted premises, for the purpose of securing the tenanted rooms, the tenant cannot claim any independent title or right over the same and the moment the tenancy is terminated, whatever accession made by him belongs to the landlord. In the result, we find no merit in this appeal. Accordingly, the same is dismissed.