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2022 Supreme(Ker) 392
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R. ANITHA, J.
MOOLAYIL RAJAN S/o NARAYANAN – Appellant
Versus
MATHONKANDIYIL PREMAN S/o KUNHI CHATHU – Respondent
R.S.A. No. 467 of 2016
Decided On : 14-07-2022
Advocate Appeared:
For the Appellants : B. KRISHNAN, R. PARTHASARATHY.
For the Respondents: U.K. DEVIDAS, K.K. ANILRAJ.
Point of Law: When there is no specific denial of bona fide need under Section 11(3) of the Act, the question of answering the proviso does not arise.
Headnote:
Kerala Building (Lease and Rent Control) Act, 1965 – Section 11, (1), (3) - Evidence Act, 1872 - Section 5 - Transfer of Property Act, 1882 - Section 111(g) - Code of Civil Procedure, 1908 - Order 8 Rule 4, 5, (1), 3 (1), Order 14 Rule 2, Order 18 Rule 2, Order 6 Rule 1 - Recovery of Possession of Plaint - Arrears of Rent - Order of Eviction - Whether courts below are justified in allowing plaintiff's claim for recovery of possession of plaint schedule building on strength of title and other reliefs in a suit for eviction under second proviso to Section 11 of Act, 1965 without establishing ingredients under Section 11(3) of Act - Whether absence of detailed discussion with regard to bona fide need or absence of finding about second proviso to 11(3) would invalidate order of eviction due to non-compliance of second proviso to section 11(1) – When there is no specific denial of bona fide need under Section 11(3) of the Act, the question of answering the proviso does not arise. So, the contention of the learned counsel for the appellant/defendant with regard to the non-compliance of the second proviso to Section 11(1) by the appellate court in not entering into a finding with regard to the bona fide need and with respect to the second proviso to section 11(3) will not be a ground to make interference with the judgment and decree passed by the courts below.(Para 37)
Finding of the court: Defendant is none other than brother-in-law of plaintiff - So, he may be quite aware that plaintiff is having no other house or property for constructing a house - That might have been reason why a specific denial of bona fide need urged in plaint has not been made in written statement - When there is no specific denial of bona fide need under Section 11(3) of Act, question of answering proviso does not arise - So, contention of the learned counsel for appellant/defendant with regard to non-compliance of second proviso to Section 11(1) by appellate court in not entering into a finding with regard to bona fide need and with respect to second proviso to section 11(3) will not be a ground to make interference with judgment and decree passed by courts below - It is agreed by counsel appearing for both sides that six months time from this date can be granted to appellant/defendant to vacate plaint schedule shed on condition to pay arrears of rent upto date within one month from this day
Result: Appeal dismissed.
JUDGMENT :
M.R. ANITHA, J.
1. This Regular Second Appeal has been directed against the judgment and decree in A.S. No. 4/2015 on the file of Subordinate Judge's Court, Vatakara which arise out of the judgment and decree in O.S. No. 42/2013 on the file of Munsiff's Court, Vatakara.
2. Appellant is the defendant in the suit. Parties would be referred as per their status before the trial court. The suit has been filed for recovery of possession and realisation of arrears of rent. Plaint schedule property originally belonged to the defendant and the plaintiff purchased it from the defendant as per Assignment Deed No. 1742 of 2003 dated 08.08.2001. Subsequently, plaintiff constructed a shed in the plaint schedule property and it was taken on lease by the defendant for conducting cement pottery manufacturing unit on a monthly rent of Rs. 700/- as per lease deed executed on 03.06.2003. Defendant committed default in payment of rent from 01.05.2004. Inspite of repeated demands, the arrears were not cleared. Plaintiff required the plaint schedule property for constructing a house. Hence plaintiff filed R.C.P. No. 39/2011 for eviction on the ground of arrears of rent. In that petition, defendant denied the title of the plaintiff. Thereafter the suit has been filed. Plaintiff executed power of attorney in favour of the wife to look after and manage the plaint schedule property and the suit has been filed by the power of attorney for and on behalf of the plaintiff. It is alleged that the plaintiff has no house or other land of his own at Vatakara town and village and they have no land to construct a new house other than the plaint schedule property and hence they bona fide need the shed described in the plaint schedule property for construction of new house after demolishing the shed. Defendant is not depending on the income derived from the business carried on in the plaint schedule shed and it not his main source of income. He has another shed in his possession which is sufficient for this purpose and there are also other buildings and sheds available in the locality for shifting the business. So, lawyer notice was issued on 07.02.2011 seeking surrender of vacant possession of the building. For that, reply was sent raising frivolous contentions.
3. Defendant filed written statement as well as additional written statement denying the landlord-tenant relationship as well as the title of the plaintiff in the plaint schedule property. The document produced as kai chit is a fraudulent document and execution of the same is stoutly denied. He never paid any rent to the plaintiff. The plaint schedule property and the remaining properties belongs to the defendant. The shed was constructed by the defendant. The plaintiff is the brother-in-law of the defendant. He borrowed an amount of Rs. 95,000/- from the plaintiff in May 2001 in two instalments. Since he could not repay the amount, only as a security Document No. 1742/2001 was executed. No title has been derived to the plaintiff as per the said document. Defendant sold a family property for the purpose of repayment of the loan due to the plaintiff and since the plaintiff was not amenable, representation was made to political parties and it is at that time notice was issued by the power of attorney of the plaintiff. The land in question is not suitable for constructing a residential building. Reply notice was sent stating true facts. Plaintiff was never in possession of the plaint schedule property.
4. PW-1 to PW-3 were examined and Exts.A1 to A16 were marked from the side of the plaintiff. Defendant got examined himself as DW-1 and Ext.B1 was marked. Learned Munsiff on evaluating the facts and circumstances and evidence found that the plaintiff has title over the plaint schedule property and it was let out to the defendant fixing monthly rent of Rs. 700/-. It is also found that defendant denied the title of plaintiff over the plaint schedule property and hence his tenancy with respect to plaint sche
