The court upheld the trial court's decision that the 2nd defendant's claim of tenancy was unsubstantiated and the plaintiffs were entitled to recover possession of the property.

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<sup>nd</sup> defendant had been continuing as a tenant in the residential building as Rs.15 lakh had to be paid by the 1<sup>st</sup> defendant to the 2<sup>nd</sup> defendant. According to the 2<sup>nd</sup> 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<sup>st</sup> defendant to the plaintiff that the 2<sup>nd</sup> 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<sup>nd</sup> 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 mark