Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 342 (KER)

REYNOLD S/o. C. R. SEBASTIAN v. CORAL BERNARD

2025-02-20

A.BADHARUDEEN

body2025
JUDGMENT : 1. This Regular First Appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the decree and judgment dated 30.11.2018 in O.S.No.22/2016 on the files of the Sub Court, Kochi. The appellant herein is the 2 nd defendant and the respondents herein are the additional plaintiffs 2 to 4 and additional defendants No.7, 3, 4, 5 and 6 respectively. 2. Heard the learned counsel for the appellant/2 nd defendant and the learned counsel appearing for the additional plaintiffs in detail. Perused the trial court records. 3. I shall refer the parties in this appeal with reference to their status before the trial court. 4. The original plaintiff filed the Suit seeking relief of mandatory injunction and recovery of possession of the plaint schedule item. During the trial, the original plaintiff expired and his legal heirs plaintiffs 2 to 4 got impleaded as additional plaintiffs. The 2 nd defendant also expired during the trial and additional defendants 3 to 7 were impleaded as his legal heirs. According to the additional plaintiffs, the plaint schedule property along with the building therein was purchased by the original plaintiff from the 1 st defendant on the strength of sale deed No.5138/2014. Previously the plaint schedule property was owned by the 2 nd defendant. He sold the property to the 1 st defendant on 25.02.2010. Thereafter the plaint schedule property was purchased by the plaintiff. According to the plaintiff, at the time of sale of the property, the 2 nd defendant has been residing therein and the 1 st defendant agreed to get vacant possession of the same from the 2 nd defendant. But the 2 nd defendant continued his residence in the property and accordingly on 03.03.2016 a legal notice was issued by the original plaintiff to the 2 nd defendant to remove himself from the plaint schedule item. Since the demand was not heeded to, the present Suit has been filed. 5. The 1 st and 2 nd defendants jointly filed written statement contending that even before the sale of the `plaint schedule property’ the appellant/2 nd defendant had been continuing as a tenant in the residential building as Rs.15 lakh had to be paid by the 1 st defendant to the 2 nd defendant. 5. The 1 st and 2 nd defendants jointly filed written statement contending that even before the sale of the `plaint schedule property’ the appellant/2 nd defendant had been continuing as a tenant in the residential building as Rs.15 lakh had to be paid by the 1 st defendant to the 2 nd defendant. According to the 2 nd defendant, he continued as a tenant in the `plaint schedule property’ on a monthly rent of Rs.2,000/- and the said rental amount was to be adjusted and deducted from the amount of Rs.15 lakh, with 18% interest due to him. The rental agreement was executed between the 1 st defendant and the appellant/2 nd defendant on the very same day of the sale of the `plaint schedule property’. There is no assurance given by the 1 st defendant to the plaintiff that the 2 nd defendant would vacate the premises immediately after the mutation of records. The original plaintiff purchased the plaint schedule item with the knowledge that the 2 nd defendant had been occupying the `plaint schedule property’ as a tenant. Therefore, the suit is not maintainable before the trial court. Since there exists the relationship of landlord and tenant, for evicting the 2 nd defendant from the plaint schedule property, eviction petition to be filed before the Rent Control Court. The appellant/2 nd defendant had every right and authority to continue as a tenant in the `plaint schedule property’. Hence the 2 nd defendant prayed for the dismissal of the suit. 6. On scrutiny of the above pleadings, the trial court raised the following issues: i. Whether there is any landlord-tenant relationship between the2 nd defendant and the 1 st defendant, in turn between the 2 nd defendant and the plaintiff? ii. Whether the plaintiff is entitled for mandatory injunction? iii. Whether the plaintiff is entitled to recover possession of the plaint schedule property from the 2 nd defendant? iv. Relief and cost. 7. Thereafter the trial court ventured the matter. PW1 was examined and Annexures A1 to A8 were marked on the side of the plaintiff. DWs 1 to 3 were examined and Ext.B1 was marked on the side of the defendants. Thereafter the trial court found that the 2 nd defendant is holding the building illegally and, therefore, he is liable to vacate the same. PW1 was examined and Annexures A1 to A8 were marked on the side of the plaintiff. DWs 1 to 3 were examined and Ext.B1 was marked on the side of the defendants. Thereafter the trial court found that the 2 nd defendant is holding the building illegally and, therefore, he is liable to vacate the same. Accordingly, relief of recovery of possession was granted in favour of the plaintiff. 8. While assailing the verdict of the trial court, the learned counsel for the 2 nd defendant zealously argued that on the strength of Ext.B1 lease agreement executed between the 1 st and 2 nd defendants on 25.02.2010, i.e on the date of execution of Ext.A4 sale deed No.848/2010 of Mattancherry S.R.O, whereby the 2 nd defendant sold his right in favour of the 1 st defendant, he has been enjoying the plaint schedule item as a tenant in terms of Ext.B1 agreement, initially executed for a period of 11 months. The other contention of the 2 nd defendant is that at the time of execution of Ext.B1 agreement, Rs.15 lakh was received by the 1 st defendant from the 2 nd defendant as security and it was agreed to return the said amount without interest after a period of 11 months. But the 1 st defendant failed to return Rs.15 lakh and accordingly the 2 nd defendant has been continuing as tenant in the plaint schedule property and, therefore, in order to evict the 2 nd defendant from the plaint schedule property, proceedings under the Kerala Building (Lease and Rent Control) Act, 1965 (for short `BRC Act’ hereafter) to be invoked and that apart the 2 nd defendant is entitled to get back Rs.15 lakh from the 1 st defendant. 9. Whereas it is submitted by the learned counsel for the additional plaintiffs that in this matter admittedly the 2 nd defendant sold the property to the 1 st defendant as per Ext.A4 sale deed and in turn as per Ext.A1 sale deed No.5138/2014 of Mattancherry SRO, the 1 st defendant sold the same to the original plaintiff with undertaking to get vacant possession from the 2 nd defendant, who is in occupation of the same illegally, without fail. It is submitted by the learned counsel for the additional plaintiffs that since the 2 nd defendant has no manner of right to continue in possession, in order to continue possession Ext.B1 was forged and created by the 2 nd defendant. While dissecting the facts and evidence in this case, in fact, Ext.B1, styling the same as a rent deed, was prepared in white papers after affixing revenue stamps on the bottom of the last page. Thus Ext.B1 is even not prepared in a stamp paper. Therefore, the trial court rightly disbelieved Ext.B1 and accordingly the tenancy claimed by the 2 nd defendant was found against him and decreed the Suit in favour of the plaintiffs. Therefore, there is no reason to upset the trial court verdict. 10. Addressing the rival contentions the points arose for consideration are: (i) whether the trial court went wrong in holding that the tenancy claimed by the 2 nd defendant on the strength of Ext.B1 is not substantiated? (ii) whether the decree and judgment under challenge would require interference? (iii) Relief (iv) Cost. 11. In this matter the 2 nd defendant admitted Ext.A4 sale deed executed by him in favour of the 1 st defendant. Thus the absolute right over the plaint schedule item, in fact, was sold in favour of the 1 st defendant as per Ext.A4. Subsequently, Ext.A3 sale agreement was executed in between the original plaintiff and the 1 st defendant on 15.03.2011 and later as per Ext.A1 sale deed dated 10.11.2014, the 2 nd defendant sold the property in favour of the original plaintiff. It is true that during the execution of Exts.A4 and A1 sale deeds the 2 nd defendant had been in occupation of the building as the prior owner of the same. Now the contention of the 2 nd defendant is that he has been continuing as a tenant in the plaint schedule item in view of Ext.B1 rent deed executed between the 1 st and 2 nd defendants on 25.02.2010, that is, on the date of execution of Ext.A4 sale deed, and therefore he could not be evicted from the plaint schedule item without opting the procedure under the BRC Act. I have perused Ext.B1, the alleged rent deed. I have perused Ext.B1, the alleged rent deed. At the outset, it could be noticed that the same is one prepared in white papers and parties signed on the last page of the same on the revenue stamps affixed therein. It is interesting to note that defendants 1 and 2 jointly filed written statements in this case and given emphasis on Ext.B1, even after the sale of the entire property by the 1 st defendant in favour of the original plaintiff. According to the 2 nd defendant, Ext.B1 lease deed was executed on the date of execution of Ext.A4 sale deed. In fact, the execution of Ext.B1 is in the midst of doubts, rather not believable. In this connection when a specific question put to the learned counsel appearing for the 2 nd defendant, why Ext.B1 was executed in white papers, without opting for execution of the same at least in a stamp paper to show its execution on the date of Ext.A4, since the parties were before the document writer’s office and Sub Registrar’s office for execution of Ext.A4 on the same day, in fact, the learned counsel for the 2 nd defendant failed to offer any satisfactory or probable explanation, rather than pointing out execution of Ext.B1 after affixing revenue stamps. The execution of a rental agreement in white papers after affixing revenue stamp is not permissible, rather such execution is the outcome of an afterthought with ulterior motives. Either in Ext.A4 or in Ext.A1, there is no mention regarding Ext.B1 or occupation of the plaint schedule item by the 2 nd defendant as a tenant. The case of the plaintiff is that Ext.B1 is a subsequently created document in collusion between defendants 1 and 2. It is true that DW2, who written Ext.B1 is none other than the daughter of the 1 st defendant. It is relevant to note that by executing Ext.A4 sale deed, the 2 nd defendant ceased to be a person having no right over the plaint schedule item. Still he can continue possession without any permission or as a tenant. In the instant case, the very execution of Ext.B1 is in absolute darkness. The first reason is that it was executed on white papers since getting stamp papers during 2010 at a later stage is an impossibility. The second and vital reason is one of the recitals in Ext.B1. In the instant case, the very execution of Ext.B1 is in absolute darkness. The first reason is that it was executed on white papers since getting stamp papers during 2010 at a later stage is an impossibility. The second and vital reason is one of the recitals in Ext.B1. The same would recite that the 2 nd defendant entrusted Rs.15 lakh to the 1 st defendant at the time of execution of Ext.B1. But as per Ext.A4, the sale consideration shown in the document is less than Rs.5 lakh and the same was received by the 2 nd defendant from the 1 st defendant. So giving Rs.15 lakh to the 1 st defendant by the 2 nd defendant, huge amount in excess of the sale price to get the status of a tenant, after parting his saleable interest is an extreme strange action and is not acceptable to prudence. Even in Ext.A1 sale deed the value of the plaint schedule iem is shown as less than Rs.6 lakh. If so, why Ext.A4 to be executed, since execution of Ext.A4 is not warranted at all. Thus the execution of Ext.B1 on paying Rs.15 lakh to the 1 st defendant by the 2 nd defendant would posit the fact that Ext.B1 is a created document. In fact, Ext.B1 could not be relied on to hold that the 2 nd defendant has been continuing in possession of the plaint schedule item as a tenant, as rightly found by the trial court. Here admittedly the 2 nd defendant has no claim other than that of a tenant and his attempt to prove the same on the strength of Ext.B1 is only to be negatived. If so, since there is no challenge against Ext.A4 and Ext.A1 title deeds whereby the plaintiff got title and possession over the property, the additional plaintiffs are entitled to get vacant possession of the building and, therefore, the trial court rightly granted decree for recovery of possession of the same. In such view of the matter, the trial court’s verdict is fully justifiable and doesn’t warrant any interference. 12. Point No.(iv) cost : In considering the nature of contention, the parties are directed to suffer their respective cost in this appeal. 13. It is noticed that this appeal has been filed by the appellant as an indigent person on allowing CMCP.2/2023. 14. 12. Point No.(iv) cost : In considering the nature of contention, the parties are directed to suffer their respective cost in this appeal. 13. It is noticed that this appeal has been filed by the appellant as an indigent person on allowing CMCP.2/2023. 14. Therefore, the appellant/the 2 nd defendant is liable to pay court fee of Rs.2,26,500/- (Rupees Two lakh twenty six thousand five hundred only) within a period of one month from today and on failure, Registry is directed to forward a copy of the decree to the District Collector concerned to realise the same from the defendant, as per law, without fail, at any rate, within a period of two weeks on completion of one month period, to pay the court fee with specific direction to the District Collector to realise the court fee, within three months from the date of receipt of a copy of the decree. Registry shall forward a copy of this order to the jurisdictional court for compliance and further steps.