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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
Shaji, S/o.Sreedharan – Appellant
Versus
K.T.Chathukutty, S/o.Chathu – Respondent
RSA No. 581, 582 of 2021
Decided on : 06-10-2021
Kerala Buildings (Lease and Rent Control) Act, 1965 - Transfer of Property Act - Section 65A - Kerala State Financial Corporation Act - Section 29 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 13(4) and 14 - Permanent – Injunction - Mortgage of property - Plaintiffs filed on file of Additional Court-I, for permanent prohibitory injunction restraining defendants from evicting the plaintiffs forcefully.- However, defendants filed on file of trial court for recovery of plaint schedule property from plaintiffs - Whether a subsequent mortgage was created by borrower.
Finding of the Court:
suit for injunction simpliciter along with 2nd plaintiff to protect his purported tenancy arrangement in plaint schedule property - Court is of view that two courts below are perfectly justified in disallowing discretionary remedy of injunction - Court can exercise its jurisdiction only on basis of substantial questions of law which are to be framed at time of admission of second appeal - It is equally settled that High Court in second appeal is not entitled to interfere with concurrent findings of facts arrived at by two courts below until and unless it is found that concurrent findings of facts were perverse and not based on sound reasonings. - Court does not find that concurrent findings of facts arrived at by trial court as well as first appellate court are either perverse or without any reason or based on non-consideration of important piece of evidence or admission of some of parties - Reverting back to case on hand, it is not in dispute that defendants are owners of plaint schedule property pursuant to sale deed in their favour - As noticed earlier, plaintiffs are not entitled to claim benefit under Act 2 of 1965 - Hence, trial court granted a decree for recovery of possession directing plaintiffs to surrender plaint schedule property to defendants. No substantial questions of law arise for consideration in these appeals.
Result: Second Appeals dismissed.
JUDGMENT :
The plaintiffs filed O.S.No.365/2007 on the file of the Additional Sub Court-I, Kozhikode (hereinafter referred to as 'the trial court') for permanent prohibitory injunction restraining the defendants from evicting the plaintiffs forcefully. However, the defendants filed O.S.No.696/2008 on the file of the trial court for recovery of the plaint schedule property from the plaintiffs. For the sake of convenience, the parties are referred to as per their litigious status before the trial court in O.S.No.365/2007.
2. The plaint schedule property having an extent of 11.5 cents of land with a three storied shopping complex belonged to a registered partnership firm under the name and style 'M/s.Three Associates', in which Sri.T.Mani, the 2nd plaintiff was a partner along with Sri.T.A.Krishnan and Sri.Kiran Babu as partners. In the year 1997, the 1st plaintiff approached the partners of the firm seeking to get possession of the shop room as a tenant for conducting a bakery business. The partners of the firm, namely, Sri.T.A.Krishnan and Sri.Kiran Babu had agreed to lease out the plaint schedule shop room to the 1st plaintiff. The 2nd plaintiff also wanted to include him in the business. Accordingly, on 3.11.1997, Sri.T.A.Krishnan and Sri.Kiran Babu rented out their 2/3rd share over the plaint schedule property in favour of the plaintiff on a monthly rent of Rs.1,000/-. Thereupon, the 2nd plaintiff obtained licence from the Corporation of Kozhikode for conducting bakery business in the plaint schedule shop room. Earlier, Sri.T.A.Krishnan, Sri.Kiran Babu and the 2nd plaintiff had availed a loan for their partnership business mortgaging the plaint schedule property by way of deposit of title deeds in favour of the Kerala Financial Corporation (for short 'the KFC'). Subsequently, they defaulted in paying the amount in time. Hence, recovery proceeding was initiated by the KFC and the property was brought to sale. The property was purchased by the defendants. Alleging fraud in the matter of sale, several litigations were launched before the courts. Those litigations were dismissed confirming the sale in favour of the defendants. According to the plaintiffs, they have been in possession of the suit property in their personal capacity as tenants in occupation of the shop room for conducting a bakery therein. The suit was filed in the year 2007 seeking to restrain the defendants, who are admittedly auction purchasers, from forcefully evicting the plaintiffs.
3. The defendants filed a suit for recovery of possession as O.S.No.696/2008 before the trial court and both the suits were tried together. The main contention of the plaintiffs is that the plaintiffs are entitled to get the benevolent provisions under the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'Act 2 of 1965').
4. The defendants contended that they have purchased the plaint schedule property in auction conducted by the KFC. According to them, as per Ext.B2 sale deed No.1192/2007 dated 23.1.2007 executed by the KFC in favour of the defendants, they have assumed title over the plaint schedule property. The defendants bid the property in auction conducted by the KFC and the sale was confirmed in favour of them. Thereafter the sale deed was executed in favour of the defendants. It was contended that the defendants are not tenants coming under the purview of the Act 2 of 1965.
5. The trial court framed necessary issues during the trial. Both cases were tried jointly. Treating O.S.No.365/2007 as the leading case, PWs.1 to 4 were examined on the side of the plaintiffs and marked Exts.A1 to A21. DW1 was examined on the side of the defendants and marked Exts.B1 to B42. Ext.C1 is the commission report filed by the Advocate Commissioner. Exts.X1 to X(6) series were also marked.
6. The trial court after considering the oral and documentary evidence of the parties has come to the conclusion that the plaintiffs are not entitled to get an equitable remedy of injunction. The s
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