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2025 DIGILAW 1842 (KER)

N. Prabhakaran v. Sakeena Beevi

2025-07-04

C.PRATHEEP KUMAR

body2025
JUDGMENT : C. PRATHEEP KUMAR, J. 1. Defendants 1 and 2 in OS 365/1985 and 1019/1995 on the file of the First Additional Sub Judge, Thiruvananthapuram, are the appellants in A.S.461/1997. The 4 th defendant and additional 6 th defendant in the above suits are the appellants in A.S.234/1997. Since both the above suits were filed by the common plaintiffs against the common defendants, the learned Sub Judge has tried those suits jointly and disposed of them by a common judgment. For the purpose of convenience, the parties are hereafter referred to as per their rank before the Trial court. 2. O.S.365/1985 is a suit for declaration of title and recovery of possession of the plaint schedule property. O.S.1019/1995 was originally filed as O.S.36/1983 before the Munsiff's Court, Thiruvananthapuram and it is a suit for injunction. Since both the suits were between the common parties and the subject matter in dispute is also the same, O.S.36/1983 was transferred to Sub Court wherein it was refiled as O.S.1019/1995. As per the plaint averments, an extent of 3.80 cents of property comprised in Sy.No.39 of Ayiranimuttom village with buildings having T.C. Nos.39/2024, 2025, 2026, 2027 and 2028 were taken delivery of by the plaintiffs in execution of the decree passed in O.S. 24/1961 of the Sub Court, Thiruvananthapuram, and accordingly the plaintiffs became in absolute title and possession of the said property and the buildings. All the aforesaid shop rooms form part of a single building under a common roof and it was a double storied one. The 1 st defendant is the wife of the 2 nd defendant. The 1 st defendant was the tenant of the building bearing T.C.No.39/2027 and also the room in the upstairs which is having No.39/2028 and a shed behind the above room, on a monthly rent of Rs.75/-. The 3 rd defendant was the tenant of building No.2026, with a monthly rent of Rs.30/- and defendants 4 and 5 were tenants of building Nos.2024 and 2025 and the rate of rent was Rs.15/- and Rs.20/- respectively. According to the plaintiffs, the entire building was destroyed in fire that broke out on 30.12.1982 followed by a communal violence and accordingly the tenancy came to an end and the lease got extinguished. According to the plaintiffs, the entire building was destroyed in fire that broke out on 30.12.1982 followed by a communal violence and accordingly the tenancy came to an end and the lease got extinguished. When defendants 1 to 5 along with their agents collected materials for putting up new constructions in the place of the existing building, they filed O.S.36/1983 before the 3 rd Additional Munsiff's Court and obtained an order of injunction against the said unauthorised construction. However, in violation of the above order of injunction, the defendants proceeded to construct new building and that is why the plaintiffs filed the suit for declaration and recovery of possession of the scheduled property after demolishing the unauthorized constructions put up by the defendants. They also prayed for mesne profits at the rate of Rs.240/- per month along with arrears of rent. 3. The defendants filed written statement denying the averments in the plaint. Defendant 1 and 2 admitted the tenancy in respect of building bearing T.C.No.2027 but denied having any tenancy with the plaintiffs in respect of building bearing T.C.No.2028. According to them, building No.2028 originally belonged to one Hassan and he had handed over the possession of the said building to defendants 1 and 2 for valuable consideration. According to defendants 1 and 2, the said building obtained by them from Hassan got destroyed in fire and as such the 2 nd defendant put up a new building spending a sum of Rs.1,00,000/- and he is doing business there, in the name and style 'Popular Medicals'. According to defendants 1 and 2, the plaintiffs have rented out only shop room No.2027, one upstair room and another shed which situate behind the above shop room. Only a portion of the said shop room was destroyed in the fire and the walls remained intact even after the fire occurrence. Therefore, the tenancy arrangement in respect of the above premises remained even after the above incident. Thereafter, the defendants have only repaired and renovated the said building. It is also contended that building having T.C. No.2028 is a separate entity and it is not connected with other buildings. They denied having constructed any new building in the scheduled property 4. Therefore, the tenancy arrangement in respect of the above premises remained even after the above incident. Thereafter, the defendants have only repaired and renovated the said building. It is also contended that building having T.C. No.2028 is a separate entity and it is not connected with other buildings. They denied having constructed any new building in the scheduled property 4. Defendants 4 and 6 contended that a suit is not maintainable for eviction in the light of the provisions of the Kerala Buildings (Lease and Rent Control) Act (in short, the Rent Control Act). According to them, defendants 3, 4 and 5 are the tenants of the shop rooms let out by the plaintiffs. After the death of the 3 rd defendant, his wife and children were occupying the building taken on rent by the 3 rd defendant. In the fire occurrence only minor damage was caused to the building. They have not constructed any new building as alleged. It is also contented that there is no termination of the tenancy arrangement. According to them, the tenancy arrangement continued and as such they can be evicted only under the provisions of the Rent Control Act. Therefore, they prayed for dismissing the suit. 5. The trial court framed seven issues in O.S.365/1985. In O.S.1019/1995 five issues were framed. 6. The evidence in the case consists of the oral testimony of PW1, Exts.A1 to A7 for the plaintiffs and oral testimonies of DWs1 and 2 and Exts.B1 to B19 for the defendants. After evaluating the evidence on record the trial court decreed O.S.365/1985 declaring the title of the plaintiffs over an extent of 3.08 cents less the extent acquired for the road. Defendants 1, 2, 4 and 6 were directed to dismantle the rooms in the building which they have constructed in the scheduled property, within a period of three months and failing which the plaintiffs are allowed to get the same demolished through court and realise the expense from defendants 1, 2 , 4 and 6. They were further directed to pay the rent at the rate of Rs.2100/-, 2240/- and 360/- respectively per year from 1.1.1983 till date, failing which the plaintiffs were allowed to recover the same through Court. At the same time, O.S.1019/1995 was dismissed as it became infructuous. They were further directed to pay the rent at the rate of Rs.2100/-, 2240/- and 360/- respectively per year from 1.1.1983 till date, failing which the plaintiffs were allowed to recover the same through Court. At the same time, O.S.1019/1995 was dismissed as it became infructuous. Being aggrieved by the above judgment and decree of the trial court, defendants 1, 2, 4 and 6 preferred these appeals raising various contentions. 7. Now the points that arise for consideration are the following : i. Whether the 1 st defendant is a tenant of the building havng T.C.No.2028 ? ii. Whether the lease stand extinguished due to the destruction of the building by fire that occurred on 30.12.1982 ? iii. Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeals ? 8. Heard Sri..Pirappancode V.S.Sudheer and Smt.Ligey Antony, the learned counsel for the appellants and Sri.Ananthakrishnan S., the learned counsel for the respondents. 9. The points :- Though the extent of the schedule property is mentioned as 3.80 cents, as noticed by the trial court, it is a mistake and the total extent is only 3.08 cents and the building therein. It has also come out in evidence that among the shop rooms having Nos.2024 to 2028, building No.2024 was acquired for widening the road and therefore, the available extent of the plaint schedule property is now less than 3.08 cents. Admittedly, at present, building No.2025 is in the possession of the 4 th defendant and building No.2026 which was in the possession of the 3 rd defendant, after his death, is in the possession of the 6 th defendant. Similarly, building Nos.2027 and 2028 are in the possession of defendants 1 and 2. Defendants 4 and 6 admit that they are the tenants of the plaintiffs. However, according to defendants 1 and 2 building No.2027 alone was taken on rent from the plaintiffs and according to them, the 2 nd defendant is the absolute owner of building No.2028. The above claim of the 2 nd defendant is stoutly denied by the plaintiffs and according to them, building No.2028 is also part and parcel of the plaint schedule property. The above claim of the 2 nd defendant is stoutly denied by the plaintiffs and according to them, building No.2028 is also part and parcel of the plaint schedule property. Relying upon Ext.A2 delivery kaichit the learned counsel for the appellants namely defendants 1 and 2 would argue that as per the said document, the building delivered to the plaintiffs' predecessor does not include building No.2028. It is true that in Ext.A2 delivery kaichit, building No.2028 is not mentioned. According to the learned counsel for the plaintiffs it is only an omission to mention one building number in the delivery kaichit. According to him, though there are separate building numbers, they are numbers allotted to different rooms in the same two storied building obtained as per Ext.A2 delivery kaichit. Now the question to be considered is whether the plaintiffs obtained building/room No.2028 also, along with Ext.A2 delivery kaichit. 10. The learned counsel for the plaintiffs relying upon Ext.B4 rent deed executed by the defendants on 9.3.1981 would argue that the above rent deed mentions about two rooms as well as an extension on its back. On a perusal of Ext.B4 it can be seen that the said rent deed is in respect of shop room havng T.C.No.39/2027 and another room on its upstairs and a shed behind the said rooms. According to the learned counsel, building No.2028 is the room which situates on the upstairs of 2027 and as such, it was argued that, there is no merits in the arguments advanced by the appellants that they are not the tenants in building No.2028. 11. In order to prove the possession over building No.2028, the learned counsel has relied upon Ext.B6 licence, Ext.B9 building tax receipt and Ext.B12 certificate issued from the Corporation of Trivandrum. Further, during the pendency of these appeals, defendants 1 and 2 have produced sale deed No.114/1998 executed by one Hassan in favour of the 2 nd defendant, in respect of building No.2028. However, the said sale deed is seen executed after the decree in the suit. The learned counsel for the plaintiffs would argue that Hassan had no property left with him in his possession, after Ext.B2 delivery so as to execute a document like the sale deed now relied upon by defendants 1 and 2. However, the said sale deed is seen executed after the decree in the suit. The learned counsel for the plaintiffs would argue that Hassan had no property left with him in his possession, after Ext.B2 delivery so as to execute a document like the sale deed now relied upon by defendants 1 and 2. According to the learned counsel, the entire property in the possession of Hassan was delivered to the plaintiffs as per Ext.B2 and therefore, it was argued that it is only a deliberate attempt on the part of defendants 1 and 2 to retain the possession over building No.2028. Since Annexure-A sale deed is executed subsequent to the decree in the suit, it could not have been produced before the trial court and as such, in the light of Order XLI Rule 27, the said sale deed is marked as Ext.B20. 12. In Ext.B20, it is stated that Hassan assigned an extent of 1.296 cents of property along with building No.2028 in favour of the 2 nd defendant. As per the said document, it is part of the share he obtained as per the decree in O.S.177 of 1973 on the file of the Sub Court, Thiruvananthapuram. It further states that possession of the old building was handed over to the 2 nd defendant as early as on 17.7.1977, that the said building was completely destroyed in the fire incident, that in it’s place a new building was constructed by 2 nd defendant, that for getting number to the new building a suit as O.S.1029 of 1988 was filed against the corporation of Thiruvananthapuram and obtained a favourable decree and thereby he became the owner of that building. However, before the trial court the defendants 1 and 2 had no such case. 13. As argued by the learned counsel for the plaintiffs, defendants have no consistent case with regard to their right over building No.2028. In the written statement filed in OS 1019/1995 their contention was that the above building situates in puramboke land. Thereafter, in OS 365/1985 they would contend that the said property belonged to Hassan and that he had given possession over the said property to defendants 1 and 2 for valid consideration. Only after the impugned decree, they have managed to execute a document like Ext.B20 in which Hassan allegedly transferred his right in the above building. Thereafter, in OS 365/1985 they would contend that the said property belonged to Hassan and that he had given possession over the said property to defendants 1 and 2 for valid consideration. Only after the impugned decree, they have managed to execute a document like Ext.B20 in which Hassan allegedly transferred his right in the above building. From Ext.A2 delivery kaichit and from Ext.B4 rent deed it is revealed that there was a second room on the upstairs of building No.2027, in addition to an extension behind the said room. It is also revealed that those rooms are part of a two storied building obtained by the plaintiffs as per Ext.B2 delivery kaichit in execution of the decree in O.S.24 of 1961 of the Sub Court, Trivandrum. It is revealed in evidence that in the scheduled property covered by Ext.A2 delivery kaichit there was only a single two storied building with an extension on the east and staircase on the north, containing several shop rooms. From the delivery kaichit it is revealed that the above entire building was delivered to the plaintiffs and thereafter nothing remained in the possession of Hassan so as to execute a document like Ext.B20. From the evidence of DW1 it is also revealed that rooms 2027 and 2028 have common wall with common door and hence they are not two independent shop rooms as now claimed. Therefore, from the available evidence it can be seen that those two rooms are part and parcel of the plaint schedule property obtained by the plaintiffs as per Ext.B2 delivery kachit. If so, it is to be held that the 1 st defendant is only the tenant of building No.2028 and the plaintiffs are the landlords of the above room/building as well. 14. The fact that on 30.12.1982 a communal violence occurred at Thiruvananthapuram and that it was followed by extensive damage to various shop rooms in fire is not disputed. It is also admitted that the building situated in the plaint schedule property also sustained serious damage in the said fire occurrence. While according to the plaintiffs the above buildings in full were extensively damaged, the defendants would contend that after the fire occurrence, some of the walls of the buildings were intact and they have only made repairs and maintenance work. While according to the plaintiffs the above buildings in full were extensively damaged, the defendants would contend that after the fire occurrence, some of the walls of the buildings were intact and they have only made repairs and maintenance work. On the other hand, according to the plaintiffs, the defendants constructed entirely new building in place of the existing building and as such the tenancy came to an end and they are entitled to recover possession of the schedule property after demolishing the unauthorised construction put up by the defendants. The contention taken by the defendants is that since the building was not fully destroyed in the fire and they have only effected repairs and maintenance, the tenancy continued and hence they could be evicted only under the provisions of the Rent Control Act. 15. The trial court found that the defendants put up new structures unauthorisedly and as such the plaintiffs are entitled to get a decree of mandatory injunction directing the defendants to dismantle the unauthorized structures put up by them and also a declaration of title in favour of the plaintiffs. However, the trial court found that the plaintiffs are not entitled to get the prayer sought for recovery of possession as according to the trial court, the tenancy remained even after the fire occurrence. 16. In order to prove that the original tenanted premise was completely destroyed in fire and that thereafter the defendants put up entirely new structures, the learned counsel for the plaintiffs relied upon Exts.C1 an C2 Commission reports. In Ext.C1 Commission report, the Commissioner reported that only few portions of the walls of the old shop rooms remained after the fire occurrence. Even at the time of visiting the property on 10.1.1983 for preparing Ext.C1, the Commissioner noticed that there was attempt from the side of the defendants in putting up new structures in the plaint schedule property. It was in the above circumstance the learned Munsiff passed an interim injunction restraining the defendants from putting up any new structures in the scheduled property. However, in Ext.C2 report prepared by the said Commissioner after visiting the property on 27.8.1984, it was reported that, in the place of the existing old structure, new structures were put up by the defendants. However, in Ext.C2 report prepared by the said Commissioner after visiting the property on 27.8.1984, it was reported that, in the place of the existing old structure, new structures were put up by the defendants. It was in the above context that the trial court categorically found that the above structures were put up by the defendants during the pendency of the interim injunction in utter disregard of the above interim order. It was in the above context the trial court found that in the place of the remnants of the old building which remained after the fire occurrence, the defendants have constructed entirely new building and as such, it is an unauthorized construction. 17. In the written statement filed by defendants 1 and 2 itself it is admitted that the building 2028 was destroyed in the fire occurrence and that the 2 nd defendant subsequently put up a new building in its place. Therefore, even from the averments in the written statement, it is revealed that the existing tenanted premises was completely destroyed in fire and in its place they have put up an entirely new construction. The defendants have no case that they have put up the new construction in the plaint schedule property with the consent of the landlords, namely the plaintiffs. In the above circumstances, the above construction put up by the defendants are unauthorized construction and as such, the trial court was justified in passing a decree of mandatory injunction directing them to demolish the said unauthorized construction. 18. In the decision in Kalpakam Amma v. Muthurama Iyer , 1994 (2) KLT 424, this court held that the word 'building' includes the land wherein the building situates also and that the building cannot stand without the appurtenant land. In the above decision, this Court further held that in spite of destruction of substantial portion of tenanted premises the tenancy will continue. It was in the above context that the trial court declined the prayer for recovery of possession. 19. In the decision in Vannattankandy Ibrayi v. Kunhabdulla Hajee , (2001) 1 SCC 564 , the Apex Court has taken a contrary view and held that if the subject matter of the tenancy was destroyed, the tenancy also stands extinguished. It was in the above context that the trial court declined the prayer for recovery of possession. 19. In the decision in Vannattankandy Ibrayi v. Kunhabdulla Hajee , (2001) 1 SCC 564 , the Apex Court has taken a contrary view and held that if the subject matter of the tenancy was destroyed, the tenancy also stands extinguished. However, later on in the decision in M/s. Shaha Ratansi Khimji & Sons v. Proposed Kumbhar Sons Hotel Pvt. Ltd. 2014 KHC 4477, a three Judge Bench of the Apex Court held that “building and land are components of the subject matter of demise and destruction of building alone cannot determine tenancy when land which is the site of building continues to exist.” The Hon'ble the Apex Court has further held that the decision in Ibrayi (supra) is no more good law. Therefore, in the light of the decision in Shaha Ratansi Khimji (supra) it is to be held that the lease has not extinguished due to the destruction of the building by fire that occurred on 30.12.1982. Therefore, in the absence of termination of tenancy, the trial court was justified in declining the prayer for recovery of possession. 20. At the same time, since it is revealed that the plaint schedule property including building Nos.2024 to 2028 belong to the plaintiffs, the trial court was justified in declaring the plaintiffs' title over the plaint schedule property having an extent of 3.08 cents less the extent acquired for widening the road. Further, since it is revealed that the structures put up by the defendants in the tenanted premises are unauthorised, the trial court was justified in passing a decree of mandatory injunction directing the defendants to demolish those unauthorized structures. Therefore, I do not find any illegality or irregularity in the impugned judgment and decree of the trial court so as to call for any interference. Points answered accordingly. In the result, these appeals stand dismissed.