IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 5^TH DAY OF JANUARY 2024 / 15TH POUSHA, 1945 RSA NO. 5 OF 2024 AS 98/2022 OF IInd ADDITIONAL DISTRICT COURT, KOZHIKODE OS 334/2019 OF MUNSIFF-MAGISTRATE COURT, THAMARASSERY APPELLANT/APPELLANT/DEFENDANT:

P.J JOSEPH AGED 59 YEARS S/O JOSEPH, PAIMBALLIYIL HOUSE THIRUVAMBADI P.O, THIRUVAMBADI AMSOM DESOM THAMARASSERY TALUK, PIN -

673603 BY ADVS.

P.A.MOHAMMED SHAH RENOY VINCENT SHAHIR SHOWKATH ALI CHELSON CHEMBARATHY ABEE SHEJIRIK FASLA N.K MUHAMED JUNAID V. FATHIMA AFEEDA P. ADITH KRISHNAN.U.

NABEEL SHAH IBRAHIM SHIBU V.M.

RESPONDENT/RESPONDENT/PLAINTIFF:

SUNIL GEORGE AGED 53 YEARS S/O M.M VARKKI MUTTATHKUNNEL HOUSE, THIRUVAMBADI AMSOM CHERUPRADESOM, MUKKOM P.O THAMARASSERY TALUK, PIN – 673602 (CAVEATOR – GEORGE SEBASTIAN)

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A. BADHARUDEEN, J.

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R.S.A.No.5 of 2024 -----------------------------------------------------

Dated this the 5^th day of January, 2024

JUDGMENT

The Second Appeal has been filed under Section

100 read with Order 42 Rule 1 of the Code of Civil Procedure. The appellant is the defendant in O.S.No.334/2019 on the files of the Munsiff Court, Thamarassery. He is aggrieved by the judgment and decree rendered by the learned Munsiff dated 27/07/2022 and confirmed by the Additional District Court, Kozhikode-II in A.S.No.98/2022 dated

19/10/2023.

2. Heard the learned counsel for the appellant and the learned counsel for the respondent - Adv.George Sebastian, who filed Caveat O.P.No.1106/2023. Perused the judgments under challenge.

3. I shall refer the parties in this appeal with reference to their status before the trial court as plaintiff and defendant.

4. Originally, the suit was instituted by the plaintiff for injunction, possession and damages. The case of the plaintiff is that the defendant, who occupied the plaint schedule building as a licencee, as per the licence deed executed on 01/12/2014, is hesitant to vacate the same. It is alleged further that the period of licence initially was for 11 months and the same expired on 31/10/2015. When the licencee failed to surrender vacant occupation of the licenced premises, the suit was necessitated.

5. The defendant filed written statement and raised contention that the defendant got possession of the building from 2004 itself as a 'lessee' and therefore, his status is not that of a 'licencee' but that of a 'lessee'.

6. The trial court recorded evidence. PW1 and PW2 examined and Exts.A1 to A5 marked on the side of the plaintiff. DW1 to DW3 examined and Exts.B1 and B2 marked. CW1 examined and Ext.C1 also marked.

7. On adjudication of the matter, the learned Munsiff decreed the suit as under:

1. Defendant is directed to hand over to the plaintiff the vacant possession of plaint schedule shop room within two months.

2. Defendant is liable to pay Rs.11,310/- per month as damages to the plaintiff for the unauthorized use and occupation of the plaint schedule shop room from the date of suit onwards.

3. The plaintiff is also entitled to recover possession of the plaint schedule shop room on the basis of his title also.

8. On appeal, the learned Additional Judge also confirmed the findings.

9. The learned counsel for the defendant submitted that PW1 admitted occupation of the building prior to Ext.A1 and therefore, his status is that of a 'lessee'. Therefore, the verdicts under challenge, would require interference, by admitting this second appeal.

10. Refuting his contention, Adv.George Sebastian who appears for the plaintiff submitted that whether the arrangement is one of 'lease' or 'licence', the same has no significance in this case at hand, since the provisions of the Kerala Buildings (Lease and Rent Control) Act would not apply to the plaint schedule building in question and therefore the remedy of the plaintiff is to file suit fo