IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 5^TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945 RSA NO. 838 OF 2020 AGAINST THE JUDGMENT AND DECREE DATED 20.12.2019 IN AS 21/2017 ON THE FILE OF THE SUB COURT, ATTINGAL AGAINST THE JUDGMENT AND DECREE DATED 30.06.2017 IN OS NO.115/2013 OF MUNSIFF COURT, ATTINGAL APPELLANT/APPELLANT/DEFENDANT:

RATHEESH AGED 49 YEARS S/O. KARUNAKARAN, RATHEESH FLOWER MART, KILIMANOOR, PAZHAYAKUNNUMMEL PANCHAYATH, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM 695 304 BY ADV K.SIJU RESPONDENT/RESPONDENT/PLAINTIFF:

V.S.MARY AGED 68 YEARS D/O. VELAYUDHAN, S.N.V SADANAM, KILIMANOOR, PAZHAYAKUNNUMMEL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM 695 304 BY ADV SRI.LATHEESH SEBASTIAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 05.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CR

JUDGMENT

Dated this the 5^th day of September, 2023 This regular second appeal has been filed under section

100 of the Civil Procedure Code (hereinafter referred to as 'CPC' for short) and the appellant is the defendant in O.S.No.115/2013 on the files of the Munsiff 's Court, Attingal. The appellant is aggrieved by the decree and judgment dated 30.06.2017 in OS No.115/2013 as well as decree and judgment in AS No.21/2017 dated 20.12.2019 on the files of the Sub Court, Attingal.

The respondent herein is the plaintiff in the above Suit.

2. Heard the learned counsel for appellant as well as the learned counsel appearing for the respondent.

3. This appeal got admitted by raising the following substantive questions of law.

i) Whether a document required to be registered is admissible in to evidence U/s.49 of the Registration Act?

ii) Whether Ext.A1 agreement is one coming under proviso to Sect.49(c) of the Registration Act if so the same is a collateral transaction or not?

iii) Whether issuance of a quit notice U/s.106 of Transfer of Property Act is necessary before initiating suit for eviction?

4. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendant' for convenience.

5. The case put up by the plaintiff before the trial court was that the plaint schedule shop bearing No. 30 in ward No.IX of Pazhayakunnummel Grama Panchayat, originally owned and possessed by the plaintiff, was given on rent to the defendant with effect from 01.08.2009 for a period of three years, agreeing to pay rent at the rate of Rs.800/- (Rupees eight hundred only) per month. While occupying the building as tenant, the defendant defaulted payment of rent due for a period of 30 months. Accordingly, the plaintiff filed suit to get vacant possession of the plaint schedule shop room and also for getting decree of permanent prohibitory injunction restraining the defendant from causing any harm, obstruction, waste or any mischief which would affect the right of the plaintiff over the plaint schedule shop room.

6. The defendant resisted the suit, admitting execution of the rent deed in favour of the plaintiff, contending that the defendant constructed a shop room in the year 1989 in the building and he had spent Rs. 50,000/- for the said purpose. Further, the defendant used to pay rent to one Sreekumaran Nair, who was the manager of the brother of the plaintiff. That apart, it has been contended that the statutory notice prescribed under Section 106 of the Transfer of Properties Act, 1882 (hereinafter referred to as 'the TP Act' for convenience), was not issued before filing the suit for eviction and as such, the suit is not maintainable.

7. The trial court framed necessary issues and recorded evidence. PWs 1 to 3 examined and Exhibits A1 to A8 marked on the side of the plaintiff. DWs 1 and 2 examined on the side of the defendant.

8. On appreciation of evidence, the learned Munsiff granted the decree as under:

“In the result, the suit is decree as follows:

i) The defendant shall surrender vacant possession of the plaint schedule shop room within a period of 30 days, failing which the