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2017 DIGILAW 269 (KER)

SANKARA NARAYANA PILLAI, S/O. VASUDEVAN PILLAI v. HARIGOVINDAN, S/O. MURALEEDHARAN PILLAI

2017-02-07

B.KEMAL PASHA

body2017
JUDGMENT : Challenging the concurrent findings entered by the Munsiff's Court, Haripad in O.S.Nos.446/2000 and 285/2000 followed by those of the Addl. District Court-I, Mavelikkara in A.S.Nos.29/2007 and 30/2007 respectively, the defendants in O.S.Nos.446/2000 and 285/2000 has come up in appeal. 2. O.S.No.285/2000 was filed as a suit for perpetual injunction restraining the defendants from making additional constructions and encroachments into the remaining property of the plaintiff. Subsequently, the very same plaintiff filed O.S.No.446/2000 as a suit for eviction of the first defendant from the shop room and for realization of compensation at the rate of 500 per month for the unlawful use and occupation of the shop room. 3. The shop room in question is situated in one cent of property. According to the plaintiff, he purchased 38 cents of property which include the said one cent of property, through a sale deed executed by his parents in his favour in the year 1987. The said properties originally belonged to Bhargavi Amma, who sold the same to Krishna Pillai through Ext.A11. Bhargavi Amma got the properties by redeeming the mortgages through Exts.A12 and A13 release deeds of the year 1952. Krishna Pillai sold the said properties to the parents of the plaintiff through Ext.A1 sale deed, in the year 1972. 4. According to the plaintiff, the father of the first defendant was a dependent of the plaintiff's father. Plaintiff's father constructed a shop room near to the south western corner of the said 38 cents of property and permitted the first defendant to start a business there. The 2nd defendant is the son of the first defendant. The first defendant started a small business in the shop room and subsequently his son also joined in the said business. According to the plaintiff, he or his father had never received any rent from the first defendant. It is the case of the plaintiff that subsequently in the absence of the parents of the plaintiff in the locality, the first defendant could manage to get the shop room assessed by the Panchayat for building tax in the name of the first defendant. Unauthorizedly and illegally the first defendant with the assistance of the 2nd defendant made preparations to extend the shop room to the other portions of the property of the plaintiff with a view to making encroachments into the property and consequently O.S.No.285/2005 was filed. 5. Unauthorizedly and illegally the first defendant with the assistance of the 2nd defendant made preparations to extend the shop room to the other portions of the property of the plaintiff with a view to making encroachments into the property and consequently O.S.No.285/2005 was filed. 5. The defendants contended that the first defendant had obtained the lease of one cent of land from Bhargavi Amma in the year 1957 for commercial purpose, and he put up the scheduled shop room in the said property and continued to conduct business therein. It is also contended that he continued to pay rent of 4 per year to Bhargavi Amma and thereafter the rent was enhanced to 5 per year and the same was paid to the subsequent transferees also. The first defendant is claiming the protection of Section 106(1) of the Kerala Land Reforms Act, 1963(for short 'the KLR Act') since he had obtained the land on lease for commercial purpose and constructed the scheduled shop room in it prior to 1957, much prior to the appointed day of 20.05.1967. 6. When the injunction suit was stoutly opposed by the defendants with the aforesaid contentions, the plaintiff filed O.S.No.446/2000 seeking a decree for eviction and also for compensation as aforesaid. The first defendant opposed the said suit also on the very same grounds as aforesaid. 7. Both the suits were jointly tried by treating O.S.No.446/2000 as the main case. On the side of the plaintiff, PWs.1 to 3 were examined and Exts.A1 to A13 were marked. On the side of the defendants, DW1 to DW4 were examined and Exts.B1 to B12 were marked. The Commissioner's report was marked as Ext.C1. The trial court after considering the evidence, decreed both the suits in terms of the plaint. Aggrieved by the said judgment and decree, the defendants preferred A.S.No.29/2007 and 30/2007 before the lower appellate court. The lower appellate court also concurred with the findings entered by the trial court, and dismissed both the appeals. 8. These second appeals have been admitted by this Court on the following substantial question of law: "Whether evidence of DW2 Bhargavi Amma with the evidence on record establishes the claim for protection under Section 106 of the KLR Act?" 9. The lower appellate court also concurred with the findings entered by the trial court, and dismissed both the appeals. 8. These second appeals have been admitted by this Court on the following substantial question of law: "Whether evidence of DW2 Bhargavi Amma with the evidence on record establishes the claim for protection under Section 106 of the KLR Act?" 9. True that in a suit for recovery of possession or eviction based on title, the plaintiff has to prove his title over the property as well as his right to get recovery or eviction as the case may be. Precisely, the plaintiff has to stand on his legs to prove his case. At the same time, in this particular case, the first defendant has forwarded a strong claim of the protection under Section 106(1) of the KLR Act. When such a claim has been forwarded by the first defendant in respect of one cent of property and the scheduled shop room in question, the burden shifts on to the first defendant to prove their entitlement to have a claim under Section 106(1) of the KLR Act. The said aspect has been decided and concluded by this Court in Mammu Haji and Company v. Vasanthalekshmi[2014(3) KHC 213]. 10. According to the plaintiff, the continued occupation of the first defendant under the plaintiff and his parents in the scheduled shop room was in the capacity of a licensee. Per contra, the first defendant contended that there was an oral lease of the said one cent of property alone in his favour by DW2 Bhargavi Amma in the year 1957 and on getting the said property on such lease, he put up the scheduled shop room and continued his business in it. In order to avail the protection of Section 106(1) of the KLR Act, the lessee has to prove that the lease of the land was for industrial or commercial purpose and further that he constructed a building for such industrial or commercial purpose in the said land before the appointed day of 20-05-1967. On proof of those aspects, he shall not be liable to be evicted from the said land. 11. In these suits, the claim of the first defendant is of an oral lease by Bhargavi Amma in his favour in the year 1957. Therefore, there could not have been any document to prove such a lease. On proof of those aspects, he shall not be liable to be evicted from the said land. 11. In these suits, the claim of the first defendant is of an oral lease by Bhargavi Amma in his favour in the year 1957. Therefore, there could not have been any document to prove such a lease. In such a situation the first defendant ought to have proved that there was such an oral lease for commercial purpose in his favour and he had put up the scheduled shop room in the said land for commercial purpose prior to the appointed day. The first defendant has produced Ext.B9 dated 26.11.1959 which can be styled as a document creating some thing in the form of a usufructory mortgage. 12. As per the said document Bhargavi Amma had accepted an amount of 45 from the first defendant and permitted the first defendant to pluck coconuts from 13 coconut trees in the said properties. It was also made mention of that on the discharge of the principal amount and its interest, the first defendant should return the said 13 coconut trees to her. Even for permitting the first defendant to pluck coconuts from 13 coconut trees, she had chosen to execute Ext.B9 "venpatta cheettu". In such a case, preponderance of probabilities clearly show that she would not have leased out her one cent of property to the first defendant through an oral lease, that too, without mentioning even the duration of such a lease. From Ext.B9 itself the conduct of the parties are clear, and the case set up by the first defendant as one of oral lease cannot be believed. 13. In order to prove his long occupation of the scheduled shop room, the first defendant is mainly relying on Ext.B1 series of receipts obtained from the local authority for the payment of profession tax, licence fee under the P.F.A. Act etc. Three among the said receipts are seen to be for the period prior to 1962. At the same time, there is absolutely nothing to show that Ext.B1 series were in respect of the business conducted by the first defendant in the schedule shop room. True that he might have conducted the business, for which he could procure Ext.B1 series. Three among the said receipts are seen to be for the period prior to 1962. At the same time, there is absolutely nothing to show that Ext.B1 series were in respect of the business conducted by the first defendant in the schedule shop room. True that he might have conducted the business, for which he could procure Ext.B1 series. When there is absolutely nothing in Ext.B1 series to show that the same were issued to the first defendant in respect of or in connection with the business carried on by him in the scheduled shop room, the said receipts are of no use at all to find the occupation of the first defendant in the scheduled shop room prior to the appointed day. 14. Another piece of evidence being heavily relied on by the first defendant is Ext.B12 certificate issued by the Assistant Executive Engineer, Electrical Major Section, Cheppad, which shows that electric connection was given to the first defendant under consumer No.1200 Cheppad, on 28.08.1959. DW4 was examined to prove Ext.B12. DW4 admitted that Ext.B12 was issued by another engineer and not by him. Even the name of the person who issued Ext.B12 is not there in Ext.B12. On going through the depositions of DW4, it is evident that any reliance cannot be placed on Ext.B12. No supporting document has been produced to prove the contents of Ext.B12. Apart from that DW1 in cross-examination has clearly admitted that he has no dispute in the suggestion that electricity line was drawn and charged at Muthukulam after 1965. It cannot be believed that in the year 1959 electricity line was drawn at a remote place like the one where the scheduled shop room was allegedly situated. 15. Apart from all the above, when a claim of oral lease has been set up as the defence, it is not easy to prove a mere extension of the lease on the same terms and conditions especially when the first defendant has chosen to attorn to the subsequent transferees of the so-called lessor, that too, on payment of higher rate of rent. In such case, in the absence of a lease deed in writing, it cannot be said that there was no surrender of the earlier lease. In such case, in the absence of a lease deed in writing, it cannot be said that there was no surrender of the earlier lease. Had there been a lease deed, the first defendant could have validly contended that he was holding over the said property, even after the period of lease on the terms and conditions contained in the lease deed, even when an enhanced rent was paid. In the absence of such an agreement in writing, the only view that can be taken is that there was an implied surrender of the earlier lease, as and when the first defendant attorned to the subsequent transferees, that too, on the payment of a higher rate of rent. 16. The learned counsel for the appellant has invited the attention of this Court to the decision in Balagangadharan Nair v. Bhaskaran Nambiar[ 1984 KLT 422 ]. It says that even when a lessee has parted with his possession of the building put up by him in the land came into his possession through a commercial lease of property within the meaning of Section 106(1) of the KLR Act, the benefit under the said provision cannot be denied to such a defendant and still he is entitled to have the protection of the said provision. The said decision has no application to the present case. The learned counsel for the appellant has relied on the decision of this Court in Kochu Vavakunju Ahamed Kunju Labba v. Kesava Pillai Govinda Pillai [1992 (2) KLJ 47] wherein it was held that there is nothing in the Section or in the Act which provides for the loss of protection of the lessee in any contingency and it is therefore clear that once a lessee is bound to be entitled to the protection of Section 106 of the KLR Act, he does not lose that protection by anything that may happen thereafter. True that, in order to get that protection, the tenant has to prove the ingredients of Section 106(1) of the KLR Act. True that, in order to get that protection, the tenant has to prove the ingredients of Section 106(1) of the KLR Act. Even when the lessee parts with the building subsequently after the crystallization of his rights under Section 106(1) of the KLR Act, the tenant will not lose his right to get the protection of the said provision, because of the fact that Explanation (a) to Section 106(1) of the KLR Act defines 'lessee' as "lessee includes a legal representative or an assignee of the lessee." Even the assignment of the leasehold right is also protected and even in such case the original lessee will not lose his protection. 17. Even though DW2 has appeared before the trial court and deposed with regard to the said oral lease made by her in favour of the first defendant, from the conduct in which she along with the first defendant had executed Ext.B9, her versions relating to such an oral lease cannot be believed. When that property held by her was repeatedly transferred, she has deliberately thought of aiding the first defendant who was in some way associated with her earlier. From all the above, this Court is satisfied that there is absolutely nothing to interfere with the concurrent findings entered by both the courts below. Therefore, the same are not liable to be interfered with and hence these second appeals fail and are only to be dismissed, and I do so. In the result, these Second Appeals are dismissed. In the nature of these appeals, the parties shall bear their respective costs. All the interlocutory applications in these appeals are closed.