Erayi Krishnan v. Atuvariyimmal Manikka Krishnan (RSA Nos. 1205/2004 & 1206/2004)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 03RD DAY OF JUNE 2019 / 13TH JYAISHTA, 1941** **RSA.No. 1205 of 2004** **AGAINST THE DECREE & JUDGMENT DATED 30-03-2004 IN AS 86/2001 of PRINCIPAL SUB COURT, THALASSERY** **AGAINST THE DECREE & JUDGMENT DATED 31.5.01 IN OS 70/1997 OF MUNSIFF COURT, KUTHUPARAMBA** ## **APPELLANT/APPELLANT/DEFENDANT:** **ERAYI KRISHNAN, S/O.RAMAN, 57 YEARS, AGRICULTURIST, SIVAPURAM, AMSOM, MALOOR DESOM, THALASSERI TALUK.** **BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **ATUVARIYIMMAL MANIKKA KRISHNAN, S/O. KUNHAMBU NAIR, 53 YEARS, JUNIOR HEALTH INSPECTOR, SIVAPURAM AMSOM, MALOOR DESOM.** **BY ADVS. SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.P.S.APPU SRI.T.C.SURESH MENON** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2019, ALONG WITH RSA.1206/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No. 1205 of 2004 & 1206/2004 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 03RD DAY OF JUNE 2019 / 13TH JYAISHTA, 1941** ## **RSA.No. 1206 of 2004** **AGAINST THE DECREE & JUDGMENT DATED 30-03-2004 IN AS 84/2001 of PRINCIPAL SUB COURT, THALASSERY** **AGAINST THE DECREE & JUDGMENT DATED 31.5.01 IN OS 13/1996 of MUNSIFF COURT, KUTHUPARAMBA** ## **APPELLANT/APPELLANT/DEFENDANT:** **ERAYI KRISHNAN, S/O.RAMAN, 57 YEARS, AGRICULTURIST, SIVAPURAM, AMSOM,, MALOOR DESOM, THALASSERI TALUK.** **BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **ARUVARIYIMMAL MANIKKA KRISHNAN, S/O.KUNHAMBU NAIR, 53 YEARS, JUNIOR HEALTH INSPECTOR, SIVAPURAM AMSOM, MALOOR DESOM.** **BY ADVS. SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.P.S.APPU SRI.T.C.SURESH MENON** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2019, ALONG WITH RSA.1205/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA.No. 1205 of 2004 & 1206/2004 3** ## **[ RSA 1205/2004 & RSA.1206/2004 ]** ## **JUDGMENT** These are the two appeals preferred against the common decree and judgment in A.S.Nos. 84 of 2001 & 86 of 2001 of Sub Court, Thalassery and common decree and judgment in O.S.Nos.13 of 1996 & 70 of 1997 of Munsiff Court, Kuthuparamba by the defendant. The suit in O.S.No.13 of 1996 is for injunction simplicitor by the plaintiff. The other one in O.S No.70 of 1997 also filed by the very same plaintiff for recovery of property based on the strength of title. The property was originally belonged to the father of plaintiff one Attadappa Kunhambu Nair. The predecessor in interest of the defendant one Illath Kolath Chathukutty took property on lease by executing Ext.A1 dated 2.11.1953 in favour of the landlord. Subsequently, ## **RSA.No. 1205 of 2004 & 1206/2004 4** the landlord Attadappa Kunhampu Nair gifted the property to the plaintiff under Ext.A3 on 6.7.1979. The plaint schedule property is having an extent of 1 ¾ cents. In the trial court there was a reference under Section 125 of the Kerala Land Reforms Act for adjudicating the claim of commercial lease, under Section 106 of the said Act. It was decided against the defendant and on receipt the decision rendered by the Land Tribunal it was accepted by the trial court and decreed the suit in favour of the plaintiff. It was confirmed by the first appellate court, against the said concurrent finding rendered by both the trial court and the first appellate court, the defendant came up with this appeal. 2. The dispute centers around the plaint schedule property and the claim over the same under Section 106 of the KLR Act. Section 106 of the KLR ## **RSA.No. 1205 of 2004 & 1206/2004 5** Act extracted below for reference: Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased far commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20[th] May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years. There may not be any dispute that when there is benefit conferred under any provisions of the law, the burden to establish the same is lies on the person who claims the benefit. In other words, when the defendant claims a benefit under Section 106 of the KLR Act, the initial burden lies on that person to establish all the ingredients which ## **RSA.No. 1205 of 2004 & 1206/2004 6** constitute the benefit under Section 106 of the Act. The dispute is pertaining to the date of demolition of the building situated in the property. Ext.B1 document is dated 22.11.1954. It is an assignment of lease hold right in favour of one Alikutty, who in turn executed Ext.B2 Kychit for payment of rent. Later on it was repossessed by Chathukutty, under Ext.B3 dated 23.7.1958. A mere perusal of Ext.A1 document would show that it was executed in continuation of an earlier lease wherein it is stated that based on the earlier lease a shop room was constructed over the property presumably with the consent and permission of the landlord. Ext.B1 further shows that existence of building as on the date of its execution. Ext.B1 is dated 22.11.1954. As discussed earlier, in order to bring up the benefit conferred under Section 106 of the KLR Act, the burden is heavily ## **RSA.No. 1205 of 2004 & 1206/2004 7** on the person who claims it, the defendant to prove that there was a commercial lease and that there is a construction of a building over the property for the commercial purpose and that was in existence as on the cut off date - 20.5.1967. This court had the occasion to consider the impact of Section 106 of the Land Reforms Act in _**Karunakaran Nair v.**_ _**Ramakrishnan Nair reported in 1966 KLT 351**_ wherein the expression “has constructed building” occurred in Section 106 of the Act interpreted as follows: It follows that the expression “has constructed buildings” in S.106 connotes buildings that have been completed in construction and are continuing in existence at the relevant time. Admittedly, even on the day the Act IV of 1961, which for the first time enacted the provision, came into force, the building constructed by the lessee was not in existence. ## **RSA.No. 1205 of 2004 & 1206/2004 8** 3. The legal position was very much settled by this court, as such there cannot be any quarrel on the legal position that the burden lies on the defendant includes the burden to establish the existence of the building as on 20.5.1967. 4. Yet another question was also raised by the learned counsel stating that there is a presumption available under Section 114 of the Evidence Act and submitted that when the plaintiff is able to establish that a building was constructed and it was in existence as on the date of Ext.B1, i.e 22.11.1954, there would be a presumption that the building was therein existence as on the cut off date – 20.5.1967. But in the instant case, the defendant himself has admitted that subsequently he had demolished the building and no evidence was adduced in that behalf. Hence, no presumption can be made available, regarding its existence as on ## **RSA.No. 1205 of 2004 & 1206/2004 9** 20.5.1967 . 5. It is the case of the defendant that the building was subsequently demolished after the execution of Ext.B1 document and according to the defendant it was in the year 1973. But no scrap of paper is produced to show the same. No satisfactory evidence was adduced. When the defendant himself has admitted demolition of a building subsequent to Ext.B1, in order to obtain the benefit conferred under Section 106 of the KLR Act, he should establish the building was demolished only after the cut off date i.e 20.5.1967. In the absence of satisfactory evidence and discharge of the burden lies on the defendant there cannot be any interference to the concurrent finding rendered by both the trial court and the first appellate court. None of the question of law raised by the plaintiff at the time of admission of appeal is involved in **RSA.No. 1205 of 2004 & 1206/2004 10** the appeal. Hence, appeal fails, deserves only dismissal, but without costs. Appeal is dismissed. No costs. Sd/- **P.SOMARAJAN, JUDGE** pm // TRUE COPY // PA TO JUDGE