Sub-tenants must prove lawful occupancy with the owner's consent to claim rights under tenancy laws; failure in this leads to dismissal of eviction claims.

COMMON JUDGMENT

Dated this the 28th day of October, 2022.

R.S.A.No.613 of 2016 has been directed against the judgment and decree in A.S.No. 17 of 2013 on the file of Additional District Court-III, Thalassery which arise out of judgment and dercee in in O.S.No. 316 of 2009 on the file of Munsiff's Court, Thalassery. R.S.A.No.562 of 2016 has been directed against the judgment and decree in A.S.No.18/2013 on the file of Additional District Court-III, Thalassery which in turn arise out of the decree in counter claim in O.S.No.316 of 2009 on the file of Munsiff Court, Thalassery.

2. Suit is one for declaration and consequential injunction.

(Parties will hereafter be referred as per their status before the trail court) Plaintiff is the appellant in both R.S.As. 1st defendant is the owner of the plaint B schedule room which was let out to the mother of the 2nd defendant by name Poyyeri Vazhayil Paru. 2nd defendant is her son and continued as tenant after her death. In the year 1981, Paru sublet the room to the plaintiff on a monthly rent of Rs.120/- which was periodically enhanced to Rs.700/-. The subletting was done with the consent and knowledge of previous owner and the 1st defendant. Plaintiff has been conducting stationery business in that room. 2nd defendant informed that while he used to pay a marginal increase in rent to the 1st defendant, 1St defendant never objected the possession and enjoyment of the building by the plaintiff. Plaintiff was paying rent to Paru till her death and thereafter to the 2nd defendant till may 2009 and receipts are also being issued. 2nd defendant refused to receive rent from June 2009 onwards. On enquiry it was found that 1st defendant filed a suit against 2nd defendant as O.S.No.164/2005 and that suit was compromised by fraud, collusion and misrepresentation. The defendants were well aware that the plaintiff is in possession of the room, suppressing that fact the suit has been filed. The suit for recovery of possession would not lie against the 2nd defendant. Since the room is situated in Thalassery Municipality where the Kerala Building (Lease and Rent control) Act, 1965 is made applicable. So decree passed is not an executable decree which was obtained by concealing sub lease and possession of the room by the plaintiff. 1St defendant took effective measures to execute the decree in O.S.No.164/2005 fraudulently obtained. Hence, the suit has been filed for declaration or cancellation of the decree in O.S.No.164/2005 dated 26.06.2009 on the file of Munsiff's Court, Thalassery as null and void as is obtained by fraud, collusion and misrepresentation. Permanent injunction also sought for restraining the 1st defendant from executing that decree.

3. 2nd defendant remained exparte. 1St defendant filed written statement with counter claim alleging that property where the plaint schedule building situates originally belonged to Mallatti Randupurayil Pach @ Pakrichi Umma. She executed a commercial lease deed in favour of Poyyeri Vazhayil Paru on 23.09.1971 for six years with a rent of Rs.25 per month. Paru constructed a building in that property and was conducting a business. The period of lease was further extended to six years as per another registered deed. In the meanwhile by change of hands the property where the building stands came to be in the possession of the defendant as per registered deed of the year 1996. Paru was informed of the change of ownership by a registered notice dated 16.04.2003. By the same notice tenancy was terminated and she was directed to surrender the land and Paru filed written statement raising untenable contentions including claim of fixity of tenure under Kerala Land Reforms Act, 1963 . The plaint schedule room was constructed by Paru only in the year 1971. After sending the reply she died and 2nd defendant is her only son. Hence first defendant filed O.S.No.164/2005 for arrears of rent and for mandatory injunction to demolish the building and for recovery of possession. It