JUDGMENT

Dated this the 11th day of November, 2022.

This R.S.A has been directed against the judgment and decree in A.S.No. 29 of 2013 on the file of Additional District Court-II, Mavelikkara which in turn arise out of the judgment and decree in O.S.No. 147 of 2010 on the file of Munsiff's Court, Mavelikkara.

2. Defendant is the appellant. Suit is one for eviction and realization of arrears of rent. Plaint schedule property originally belonged to late Unnunni Jacob. Plaintiffs are the wife and children of late late Unnunni Jacob. It is alleged that defendant took the plaint schedule shed on lease on 05.10.2001 from late Unnunni Jacob on a monthly rent of Rs.1,500/- for sale of bricks and other materials. Defendant filed a suit against forceful eviction against late Unnunni Jacob. As per lease agreement, defendant is bound to vacate the shed after the period. Since he was not ready to vacate the shed, notice was issued demanding to vacate the shed. Even after that, defendant did not surrender the vacant possession of the shed. Hence the suit.

3. Defendant filed written statement contending that there is no proper termination of lease as per Section 106 of Transfer of property Act, 1882. All legal heirs of late Unnunni Jacob are not made parties to the suit. A part of the shed is situated in Puramboke land comprised in Survey No.194/1/7. So the suit is bad for non joinder of necessary parties. Plaint schedule shed is also not identifiable. Kerala State is a necessary party to the suit. It is also alleged that an amount of Rs.30,000/- was paid as advance to late Unnunni Jacob.

4. PW1 examined and Exts. A1 to A5 marked from the side of plaintiffs. DW1 examined and Exts.B1 to B5 marked from the side of the defendant. Exts. C1 and C1(a) also marked.

5. Trial court on appreciating the facts and circumstances and evidence adduced, found that plaint schedule shed is unidentifiable and a decree for eviction cannot be granted. It is also found that State of Kerala is a necessary party and hence suit is bad for non joinder of necessary parties. .Hence prayer for eviction was disallowed and plaintiff was allowed to realize arrears of rent of Rs.6,000/-.

6. Against which, plaintiff took up the matter in appeal and the Additional District Court-II, Mavelikkara allowed the appeal setting aside the judgment and decree to the extend it disallowed the prayer for eviction.

7. Aggrieved by the judgment and decree passed by the 1st appellate court, appellant/defendant approaches this Court in this regular second appeal. Substantial question of law formulated by the appellant, reads thus;

“1. Whether the court below is justified in passing a decree for eviction of a leased out shed fitting the description of a building, for monthly rent, notwithstanding the mandate of S.11 of the Kerala Building Lease and Rent Control Act?

2. Is the lower appellate court justified in issuing directions to the District Collector, when the suit is laid on a totally different cause of action?

3. Did not the lower appellate court erred in ignoring O.47 Rule 22 and Rule 33 of the Code of Civil Procedure?”

8. Notice was issued to the respondents. Lower courts records were called for and both sides were heard.

9. According to the learned counsel for the appellant, suit filed by the plaintiff is not in compliance with Order 7 Rule 3 as well as Rule-18 of Civil Rule for Practice. It is also his contention that the plaint schedule property is not identifiable and the portion of the shed in the possession of the defendant has been encroached to puramboke land. State of Kerala has not been made a party and hence, plaintiffs are not entitled to evict the defendant from the puramboke land. Further it is contended that though plaintiffs themselves were well aware of the issue of identification of the plaint schedule property and accordingly, they filed a petition to amend the plaint before the Trial court, it was dismissed by the Trial court and before the 1st appellate court also plaintiff f