Abraham Varghese v. Kerala State Civil Supplies Corporation Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA,** ## **1945** **RSA NO. 524 OF 2022** **AGAINST THE DECREE AND JUDGMENT DATED 20.12.2018 IN OS 382/2017 OF ADDITIONAL MUNSIFF COURT, KOTTAYAM AGAINST THE DECREE AND JUDGMENT DATED 18.01.2022 IN AS 76/2019 OF ADDITIONAL DISTRICT COURT - V, KOTTAYAM** ## **APPELLANT/RESPONDENT/PLAINTIFF:** ABRAHAM VARGHESE, AGED 49 YEARS, VAZHAVELITHARA PUTHENPURAYIL HOUSE, KUMARAKOM VILLAGE, KUMARAKOM P.O., KOTTAYAM - 686 563. BY ADVS. JOSEPH ABRAHAM (KOTTAYAM) HARISH ABRAHAM ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** 1 KERALA STATE CIVIL SUPPLIES CORPORATION LTD. REPRESENTED BY ITS MANAGING DIRECTOR, GANDHINAGAR, COCHIN - 682 020. 2 THE REGIONAL MANAGER, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., NEAR RAJIV GANDHI COMPLEX, THIRUNAKKARA, KOTTAYAM - 686 001. BY ADV R.LAKSHMI NARAYAN MOLLY JACOB,STANDING COUNSEL FOR SUPPLYCO. ## **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD** **ON24.11.2023, THE COURT ON 06.12.2023 DELIVERED THE FOLLOWING:** 2 RSA No.524/ 2022 _**"C.R"**_ ## _**A. BADHARUDEEN, J.**_ _**================================**_ _R.S.A No.524 of 2022_ _================================ Dated this the 6th day of December, 2023_ ## _**J U D G M E N T**_ This Second Appeal has been filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (`C.P.C' for short hereafter) challenging the decree and judgment in A.S.No.76/2019 dated 18.01.2022 on the files of Additional District Court-V, Kottayam, arose out of the decree and judgment in O.S.No.382/2017 on the files of the Additional Munsiff Court, Kottayam. 2. Heard the learned counsel for the appellant/plaintiff and the respondents/defendants. 3 RSA No.524/ 2022 3. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiff’ and `defendants’ hereafter for easy reference. 4. Perused the verdicts under challenge and the copies of documents placed by the learned counsel for the plaintiff, form part of the trial court records. 5. As on 29.08.2022, my learned predecessor, as per order dated 29.08.2022, admitted this appeal raising the following substantial questions of law: 1) Whether continued possession of the premises after the determination of the lease, under Section 106 of the Transfer of Property Act, not illegal or unlawful? (2) When tenancy stands terminated, whether non granting of damages for the use and occupation of the premises, is not illegal? **==> picture [36 x 56] intentionally omitted <==** 6. The case of the plaintiff in brief: The plaintiff filed a suit for recovery of possession of 4 RSA No.524/ 2022 building bearing No.VI/192-C (New No.XII/229) situated in Kumarakom Grama Panchayath, which was given for rent to the defendants for running Supply Co outlet. The case of the plaintiff before the trial court was that on 18.10.2011 the defendants took the building on lease agreeing to pay monthly rent of Rs.12,101/for conducting Supermarket and the period of agreement was for 5 years, which expired on 10.11.2015. Thereafter the defendants continued occupation of the building as tenant by holding over. On 23.11.2017, the plaintiff issued notice to the defendants for termination of the lease agreement w.e.f 30.04.2017 and sought recovery of possession along with damages for use and occupation @ Rs.25/- per square feet. 7. The defendants appeared and filed written statement. Defendants admitted execution of the lease agreement in between the plaintiff and the defendants and it was contended by the defendants that it was agreed between the parties to continue the lease arrangement for 15 years from 30.04.2017. Therefore the 5 RSA No.524/ 2022 relief of recovery of possession, was opposed. 8. Trial court proceeded with trial. PW1 and PW2 were examined and Exts.A2 to A8 were marked on the side of the plaintiff. Exts.B1 and B2 were marked on the side of the defendants. 9. In this mater, the lease deed executed in between the plaintiff' and the defendants was for a period of 5 years and the same was not registered. Accordingly, the said document was not read in evidence, as inadmissible. But the parties would admit that the defendants took possession of the building as a lessee to run the supermarket. 10. The learned counsel for the defendants submitted that during pendency of the Second Appeal, the defendants surrendered the building back to the plaintiff and also paid arrears of rent @ Rs.12,101/- till the date of surrender. 11. The learned counsel for the plaintiff' also conceded the surrender as submitted and payment of rent @ Rs.12,101/-. But the 6 RSA No.524/ 2022 contention raised by the learned counsel for the plaintiff' is that since the tenancy was terminated w.e.f 30.04.2017, the defendants are bound to pay damages for use and occupation to the tune of Rs.25/- per square feet. It is also submitted that the trial court granted Rs.15,000/- per month for use and occupation from 30.05.2017 till the date of vacant possession. But the appellate court interfered with the said verdict of the trial court and set aside the said finding. 12. In the case at hand, even though the lease agreement executed in between the plaintiff' and the defendants is one for 5 years, the lease agreement is inadmissible in evidence for want of registration, the parties would agree that the arrangement is nothing but lease. As things stand now, the defendants being tenants, vacated the building and paid the agreed rent @ Rs.12,101/- till the date of surrender of the building. However, the learned counsel for the plaintiff would submit that since the initial rent agreed was Rs.12,101/-, the plaintiff is entitled to get more amount for use and 7 RSA No.524/ 2022 occupation from the date of termination of the lease. 13. While appraising this argument along with the substantial questions of law, Section 111 of the Transfer of Property Act (T.P Act for short hereafter) and the decision of the Apex Court in [(2005) 1 SCC 705], _**Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.**_ required to be referred. Section 111(h) of T.P Act provides that on the expiration of the notice to quit or of intention to quit, determines the lease. In _**Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.**_ ( _supra_ ), it has been held by the Apex Court that under the general law, and in cases where the tenancy is governed only by the provisions of the Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at any rate at which the landlord 8 RSA No.524/ 2022 could have let out the premises on being vacated by the tenant. 14. In the decision reported in [(1972) 1 SCC 388], _**Bhawanji Lakhamshi and Ors. v. Himatlal Jammnadas Dani & Ors.**_ , the Apex Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. 15. In a latest decision of the Apex Court reported in [2022 KHC 6923 : 2022 LiveLaw (SC) 744], _**Indian Oil Corporation Ltd. v. Sudera Realty Private Ltd.**_ , the Apex Court held that the landlord is entitled to get damages for unauthorised occupation after the expiry of lease. 16. Thus the law is settled that a tenant in occupation of a building after termination of tenancy is a tenant at sufferance and a tenant at sufferance means a tenant who holds the demised premises wrongfully, after the termination or expiry of the term of lease and his status is that of a trespasser. 9 RSA No.524/ 2022 17. Therefore, it is held that the continued possession of the demised premises, after the termination of the lease under Section 111 of the T.P Act, is in the capacity as a tenant at sufferance, that means, a trespasser without lawful authority. 18. In so far as the quantum of damages for use and occupation, the Apex Court held in _**Indian Oil Corporation Ltd. v. Sudera Realty Private Ltd.**_ 's case ( _supra_ ) that a tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits. 10 RSA No.524/ 2022 19. Similarly, quantum of damages for the use and occupation is, at any rate, at which the landlord could have let out the premises on being vacated by the tenant. Further, the liability of the tenant, to pay damages on the basis of the rate at which the landlord could have let out the premises, may not be the same as the profit the tenant might have received with ordinary diligence. Therefore, while adjudicating the quantum of damages for `use and occupation' to be paid by a tenant at sufferance, the court would have to find out the amount the tenant could have let out the premises on vacation of the premises on . the date of termination of tenancy Therefore, it is the duty of the landlord to establish that if the tenant vacated the building on the date of termination of the tenancy, the profit out of the demised premises or the rent can be derived out by giving the same premises based on a subsequent lease deed, is more than the amount agreed upon initially as rent. In this matter, it is relevant to note that the time of tenancy initially entered 11 RSA No.524/ 2022 into between the parties expired on 10.11.2015. Ext.B2 is the letter issued by the plaintiff to the Depot Manager, Supply Co, Kottayam on 07.10.2016, wherein the plaintiff stated that he was not willing to revise the rent arrangement for a period of 15 years further. But he was willing to provide the premises for a further period of 3 years and in Ext.B2, no demand was made for enhancement of rent. 20. Thus it appears that in the case at hand, no evidence let in by the landlord to prove that the profit derived out by the landlord is something more than Rs.12,101/- or he could very well rent out the premises for a higher rate of rent during the period of occupation of the demised premises by the tenant as a tenant at sufferance. In view of the matter, for want of evidence, damages for use and occupation, as contended by the landlord, could not succeed. 21. Holding so, it is held that the plaintiff is entitled to get rent @ Rs.12,101/- per month from 30.05.2017 till the date of 12 RSA No.524/ 2022 vacation of the building and nothing more. 22. Since both sides agree that now the building was surrendered and the rent at the above rate has been paid, nothing survives in this appeal and the appeal is only to be dismissed. Therefore, the appeal is dismissed accordingly. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_