Chandrasekharan Pillai v. Rajappan Pillai and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 RSA NO. 1260 OF 2019 AGAINST THE DECREE AND JUDGMENT DATED 28.10.2019 IN AS 15/2017 OF SUB COURT, PALA AGAINST THE DECREE AND JUDGMENT DATED 27.2.2017 IN OS 154/2008 OF MUNSIF COURT, KANJIRAPPALLY** ## **APPELLANT/APPELLANT/DEFENDANT:** CHANDRASEKHARAN PILLA AGED 67 YEARS S/O. KRISHNA PILLA, VELAMPARAMBIL HOUSE, ERUMELI KARA, ERUMELI SOUTH VILLAGE, KANJIRAPPALLY TALUK, PIN 685 510 BY ADVS. M.NARENDRA KUMAR SRI.C.RAMAN ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 RAJAPPAN PILLA AGED 71 YEARS S/O KRISHNA PILLA, VELAMPARAMBIL HOUSE, ERUMELI KARA, ERUMELI SOUTH VILLAGE, KANJIRAPPALLY TALUK, PIN - 686 510 2 GOURIKUTTIYAMMA, AGED 75 YEARS D/O. KRISHNA PILLAI, KOLLAMTHUNDYIL (MULACKAL) HOUSE, NEELIPLAVU P.O, CHITTAR VILLAGE, PATHANAMTHITTA DISTRICT, PIN 689 663. 3 SARADHAMMA, AGED 80 YEARS W/O. PARAMESWARAN PILLA, PRATHIBHAYIL, CHETTIKULANGARA, KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN 689 663 R.S.A.No.1260/2019 2 4 P. KRISHNAKUMAR, AGED 54 YEARS S/O.S ARADAMMA, PARATHIBHAYIL, CHETTIKULANGARA, KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN 689 663. 5 P. JAYACHANDRAN, AGED 50 YEARS B/O. P. KRISHNAKUMAR, PRATHIBHAYIL, CHETTIKULANGARA, KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT PIN 689 663. 6 P. PREETHA, AGED 45 YEARS SISTER OF P. JAYACHANDRAN, PARATHIBHAYIL, CHETTIKULANGARA, KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN 689 663. 7 P. PRATHIBHA, AGED 45 YEARS SISTER OF P. PREETHA, PARATHIBHAYIL, CHETTIKULANGARA, KANNAMANGALAM NORTH KARA, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN 689 663. BY ADV LIJI J VADAKEDOM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON 09.12.2022 DELIVERED THE FOLLOWING: R.S.A.No.1260/2019 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.1260 of 2019 --------------------------------------------------Dated this the 9[th] day of December, 2022 ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.15/2017 on the file of Subordinate Judge's Court, Pala, which in turn arise out of the judgment and decree in O.S.No.154/2008 on the file of Munsiff's Court, Kanjirappally. The suit is one for recovery of possession, fixation of boundary and injunction. 2. Appellant is the defendant. The parties hereinafter be referred as per their status before the trial court. 3. An extent of 3.78 Ares of property along with building belonged to the plaintiffs, defendant and another sibling by name Rajamma. As per final decree in O.S.No.156/1995 of Additional Sub Court, Kottayam a partition was effected and separate possession was given to the plaintiffs and defendant as per R.S.A.No.1260/2019 4 Ext.C1(b) plan appended to the decree. 'ABGL' plot in Ext.C1(b) plan was delivered to the plaintiffs 1 to 3 as per delivery kychit dated 27.02.2007 and that property is described as plaint schedule item No.1. In pursuance of that delivery kychit defendant obtained title and possession over 'KHGL' plot in Ext.C1(b) plan. 'GL' line is the boundary separating the properties of the plaintiffs and defendant and that line was marked with black paint inside the existing building and no other boundary mark were put upon 'GL' line. When the plaintiffs attempted to put up a permanent boundary on 'GL' line defendant objected the same. Hence it has become necessary to put up a permanent boundary in 'GL' line. During the pendency of this case defendant trespassed upon the building portion 'ABGL' on 08.07.2008 and started unauthorized occupation of that portion of the building and it has been described as plaint item No.2. Rs.5,000/- is claimed towards damages for use and occupation of item No.2. Hence the suit. 4. Defendant filed written statement admitting the final decree and the allotment of shares. But it is contended that he is R.S.A.No.1260/2019 5 conducting a hotel under the name and style 'Annapoorna' in the entire building and that business was commenced in 1988 and it is being continued. A well and latrine in the plan appended as Ext.C1(b) is commonly used by Rajamma and defendant. Though delivery was effected, plaintiffs agreed to allow the defendant to continue the hotel business. So the first plaintiff and defendant mutually agreed to make a consent deed on 28.02.2007 and allowed the defendant to continue the occupation and possession upon 'ABGL' plot on a monthly rent of Rs.1,500/-. First plaintiff also received Rs.20,000/- towards security deposit. Defendant also spent Rs.2 lakhs for renovating the entire building situated in 'ABCD' plot by constructing a latrine and arch. In March 2008, the first plaintiff approached the defendant and demanded for rearranging the existing contract by providing his half of the profit derived from the building during the Sabarimala festival season commencing from November to January. Since the defendant was not amenable for the same, the suit has been filed. The building situates in an area where Kerala Building (Lease and Rent Control) Act, 1965 is made R.S.A.No.1260/2019 6 applicable. Hence there is no cause of action for filing a suit and he cannot be evicted otherwise than by due process of law. 5. PWs 1 to 3 examined and Exts.A1 and A2 marked from the side of the plaintiffs. DWs 1 and 2 examined and Exts.B1 to B4 marked from the side of the defendant. Exts.C1 and X1 also marked from the side of defendant. After trial the learned Munsiff on evaluating the facts, circumstances and evidence adduced, decreed the suit as prayed for. Against which, appeal was filed and the first appellate court on re-appreciating the facts, circumstances and evidence adduced confirmed the judgment and decree passed by the learned Munsiff and dismissed the appeal. Having lost before the two forums, appellant/defendant approached this Court in this second appeal. 6. Notice was issued to the respondents and lower court records were called for, perused and both sides were heard. 7. According to the learned counsel for the appellant, it has been found by the courts below that Ext.B1 is a compulsorily registrable document which is illegal and unsustainable. Learned R.S.A.No.1260/2019 7 counsel placed reliance on **Siri Chand (Dead) through Legal Representatives v. Surinder Singh : (2020) 6 SCC 288** . It is also contended that the genuineness of Ext.B1 was not correctly appreciated by the courts below and came to a wrong conclusion that it is not a genuine document. Ext.B1 was sent for expert opinion and the report of the expert was not considered by the first appellate court and also its admissibility was not considered in accordance with law by the courts below. It is further contended that partition has been effected and separate possession also has been given as per Ext.A1 decree and hence the plaint schedule property ought not have been taken as a coownership property. Hence the judgment and decree passed by the courts below is not sustainable in law, the learned counsel contends. 8. Learned counsel for the respondents/plaintiffs, on the other hand, would fully support the concurrent findings of the courts below and according to him, plaintiffs 2 and 3 are coowners of the plaint schedule property and Ext.B1, if at all R.S.A.No.1260/2019 8 executed by first plaintiff will not bind plaintiffs 2 and 3. In this context, he placed reliance on **Muthu v. Ammalu : 1993 (1) KLT 301 : 1993 KHC 51** and also **Rahelamma Koshy v. Yohannan & Others : 1986 KLT 1130** . 9. The main argument was with regard to Ext.B1, a consent letter alleged to have been executed by the first plaintiff on behalf of plaintiffs 2 and 3 permitting the defendant to continue the conduct of 'Hotel Annapoorna' in the premises, got delivered to the first plaintiff and on behalf of plaintiffs 2 and 3. It is also stated that the rent has been fixed at Rs.1,500/-. According to the learned counsel for the appellant, it has been found by the trial court as well as first appellate court that Ext.B1 is compulsorily registerable since it has been executed for more than one year, which, according to him, is illegal and unsustainable. He would rely on **Siri Chand** referred above wherein, while dealing with Section 106 of the Transfer of Property Act, 1882 it was held that where no specific period of tenancy is mentioned in the deed, it can only be taken that the tenancy was from month to month. In Ext.B1 it is only stated R.S.A.No.1260/2019 9 that rent of every month at the rate of Rs.1,500/- has to be paid on the first day of every month. On going through the judgment passed by the trial court it could be seen that in paragraph 33, the learned Munsiff has found that, during evidence, the defendant deposed regarding the unlimited period of the lease and that he can continue in the building as long as he pays rent. Taking that fact into account, it has been found by the learned Munsiff that any lease in excess of one year has to be registered under the provisions of Transfer of Property Act and Registration Act. 10. The first appellate court, on the other hand, found that Ext.B1 would show that it is executed for an unlimited period, that is, upto a period where the defendant is capable of paying rent and hence it was concluded that Ext.B1 is for a period exceeding one year and it is unregistered and violative of Section 17 of the Registration Act (mistakenly stated as Section 17 of Transfer of Property Act). The finding of the learned Munsiff based on the evidence of DW1 that it is for an unlimited period and hence the lease is for a period exceeding one year and that R.S.A.No.1260/2019 10 of the first appellate court that it has been executed upto a period where defendant is capable of paying rent is not a proper interpretation of Ext.B1 consent letter. On a bare glance through Ext.B1 would go to show that no period has been prescribed in Ext.B1 and it only specifies the payment of monthly rent @ Rs.1,500/-on the first day of every month. So, obviously, it can only be taken as a consent letter without specifying any period of tenancy. As has been held in **Siri Chand** referred above, it can only be taken as month to month tenancy. So, the findings concurrently found by the courts below that Ext.B1 is a compulsorily registrable document is not sustainable either in law or on facts. 11. But, the question is whether that will in any way improve the case of the defendant to prove the genuineness of Ext.B1. Learned counsel for the defendant has got a contention that Ext.B1 was sent for expert opinion and it has not been considered by the first appellate court. It is true that there is no discussion regarding the expert opinion in the judgment passed by the first appellate court. But, the learned Munsiff has given a R.S.A.No.1260/2019 11 detailed discussion of the expert opinion which is marked as Ext.X1. It has been reported that expert was unable to opine whether the questioned signature is written in the form of writings and does not contain individual handwriting characteristic and hence it is not possible to arrive at any conclusion regarding the authorship of the questioned signature marked as 'Q1' which is the signature in Ext.B1 of the first plaintiff. So, the learned counsel would contend that if at all the report of the expert was insufficient, the court below ought to have returned it on complying the specifications for enabling the expert to give an opinion regarding the questioned signature. 12. Though the learned counsel for the defendant relied on **Chandrasekharan Nair v. Olympic Credit Corporation :** **2014 (2) KLT 242** wherein it has been held that before a document is sent to an expert for scientific examination the court should _prima facie_ be satisfied itself about the academic qualification and competence of the expert and that he has a sufficiently equipped laboratory. But the expert in that case was Sri.V.Sukumara Chettiyar, a retired Joint Director of Head of R.S.A.No.1260/2019 12 Document Division of Kerala Forensic Science Laboratory and hence it was discussed that it is not known whether Sri.V.Sukumara Chettiyar have any equipment to scientifically examine the document. It was in the said circumstances, the decision in **Chandrasekharan Nair** referred above arose. But, in the present case, plaintiff has no dispute with regard to the academic qualification of the expert who has given Ext.X1 report, which would go to show that the signature was sent to State Forensic Science Laboratory for opinion. Hence the decision cited has no application as such to the case in hand. 13. Hence the burden is upon the defendant who wanted to prove Ext.B1 to take appropriate steps, if at all he wanted to send the report again to the expert for getting a further report or he could have very well examine the expert to discredit the report filed by him. So also, the trial court has given a detailed discussion regarding the signature of the first plaintiff in Ext.B1 as well as the evidence of DW2 the alleged scribe and found that there are variations with respect to the nature of letters of the first plaintiff in the plaint as well as in Ext.B1 and finally R.S.A.No.1260/2019 13 concluded that the case of the plaintiff that first plaintiff has not affixed the signature in Ext.B1 is more probable. On a comparison of signature of the first plaintiff in Ext.B1 and the admitted signatures of the first plaintiff in the plaint, the trial court pointed out some dissimilarities in the nature of some letters in the plaint as well as in Ext.B1. Some dissimilarities are also seen in the finishing letters 'a' and 'i'. DW2, the scribe of Ext.B1, is a close friend of the defendant and is not a witness in Ext.B1. So also, the details of the property upon which the lease hold right has been created is not mentioned in Ext.B1. 14. Moreover, the most crucial aspect is that second and third plaintiffs are not parties to Ext.B1 and it has been executed in such a way that first plaintiff is executing the same for and on behalf of plaintiffs 2 and 3. Plaintiffs stoutly denied the execution of Ext.B1. So also, the contention of the defendants in the written statement is that he has been conducting Hotel Annapoorna in the building in Ext.C1(b) plan from 1988 onwards. But, Ext.B4 issued from Erumeli Grama Panchayat on 07.12.2005 would show that licence has been issued to conduct a tea shop. R.S.A.No.1260/2019 14 Ext.B2, D & O licence fee receipt dated 28.11.1998 also would show that fee has been paid with respect to tea shop. Another receipt dated 07.12.2005 is also with respect to the conduct of tea shop and Ext.B3 receipt showing payment of licence fee is also for conduct of tea shop. The documents produced from the side of the defendants will not in any way probabilise the case of the defendant that he had been conducting Hotel Annapoorna in the schedule building from 1988 onwards, as alleged. So also, in the written statement, the defendant has got a specific contention that an amount of Rs.20,000/- was received by the first plaintiff towards security deposit. But Ext.B1 is silent with regard to the security deposit of Rs.20,000/- alleged to have been given by the defendant to the first plaintiff. Ext.B1 consent letter is not in consonance with the facts and circumstances of the case. 15. Impossibility of executing a rent deed immediately on the next day after getting delivery of property as per Ext.B2 has also been taken note of by the trial court. The case is of the year 1995 and the delivery has been effected only on 27.02.2007. R.S.A.No.1260/2019 15 So, as rightly found by the courts below, it is most unlikely that after getting delivery of the property after a long litigation of about 12 years, on the immediate next day the building will be given to the defendant for conducting the hotel. So, the courts below are found to be correct in arriving at a conclusion that Ext.B1 is not a genuine document executed by the first plaintiff. 16. The next contention of the learned counsel is that the finding made by the courts below that the first plaintiff being a co-owner is not entitled to grant a lease to bind the other coowners. In that aspect, the contention of the learned counsel is that it is not a co-ownership property since partition has already been effected and separate possession was given by effecting delivery. If that be so, the case of the defendant would be more worse since if there is no co-ownership right, first plaintiff has no right whatsoever to execute any document with respect to share of plaintiffs 2 and 3. Learned counsel for the plaintiff relied on **Rahelamma Koshy** referred above to support the contention that a co-owner cannot grant a lease so as to bind the other coowners. **Muthu** referred above was also relied on to contend that R.S.A.No.1260/2019 16 merely because a person is a co-owner, he cannot be allowed to appropriate to his exclusive use any portion of building. Ext.B1 consent letter seem to have been executed immediately on the next day of Ext.A2 delivery kychit on which delivery of separate share of the parties have been given through Court Amin. So, it is purported to have been executed under the guise that the first plaintiff got delivery of the property for and on behalf of all other plaintiffs and for and on behalf of them, the consent letter is given to the defendant. If at all there is no co-ownership, the case of the defendant that the first plaintiff executed Ext.B1 for and on behalf of the other plaintiffs will not have any basis at all. Ext.B1 and the contention of the defendant is actually to the effect that first plaintiff executed the consent letter for and on behalf of the other plaintiffs. Since Ext.B1 has already been found to be not acceptable or not proved, the entire case of the defendant that he is running the business under the guise of Ext.B1, the rental arrangement between him and the plaintiffs is not at all sustainable and has been rightly discarded by the courts below. It has been concurrently found by the courts below R.S.A.No.1260/2019 17 that the defendant is a trespasser upon the plaint schedule property and hence he is liable to be evicted through the process of court. It has come out that GL line in Ext.C1(b) plan in Ext.A1 decree is the boundary line and entire building ABGL plot in Ext.C1(b) plan is allotted to the plaintiffs in Ext.A1 decree and the courts below rightly found that the plaintiffs are entitled to recover the possession of ABGL plot. The damages for use and occupation has been concurrently found as Rs.5,000/- from the date of trespass till the date of recovery possession of the building. In view of the importance of the locality, the amount of Rs.5,000/fixed towards the damages for use and occupation is also quite reasonable. 17. So, on a meticulous evaluation of the judgment passed by the trial court as confirmed by the first appellate court, I am of the considered view that no substantial question of law emerges for consideration for entertaining 18 ## R.S.A.No.1260/2019 this second appeal. In the result, appeal is found to be devoid of any merit and hence dismissed. In view of the facts and circumstances and relationship between the parties, there is no order as to cost. ## **(sd/-) M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge