Haseena Shamsudhin v. M. Abdul Kareem and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945** **RSA NO. 964 OF 2006** **AGAINST THE JUDGMENT AND DECREE IN A.S. NO.1/2001 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, KOTTAYAM AGAINST THE JUDGMENT AND DECREE IN O.S. NO.438/1998 OF ADDITIONAL MUNSIFF COURT ,KOTTAYAM** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** 1 M.ABDUL KAREEM, (DIED) (RECORDED) SALEENA MANZILIL,KARAPUZHA KARA, KOTTAYAM VILLAGE. (THE APPELLANTS 2 AND 3 ARE RECORDED AS THE LR'S OF THE DECEASED 1ST APPELLANT VIDE ORDER DATED 08.04.2008 IN IA.910/2008.) 2 ZULFIKKAR, S/O ABDUL KAREEM SALEENA MANZILIL, KARAPUZHA KARA,, KOTTAYAM VILLAGE. 3 HUMAYOON, S/O ABDUL KAREEM SALEENA MANZILIL, KARAPUZHA KARA,, KOTTAYAM VILLAGE. BY ADVS. SRI.MATHEW JOHN SUJESH MENON V.B. ## **RESPONDENT:** HASEENA SHAMSUDHIN W/O.SHAMSUDHIN, SADHAR MANZILIL,, KUMMANAM KARA, CHENGALAM VILLAGE,, REP. BY HER POWER OF ATTORNEY HOLDER SADHARUDHIN,, S/O.ABDUL KHADER, OF DO. DO. BY ADVS. BIJU K. VAVA SRI.V.P.REGHURAJ SRI.V.SHYAM V.GIRISHKUMAR SUNITHA.K.KALATHIL C.SREEKALA ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON** **29.03.2023, THE COURT ON 12.04.2023 DELIVERED THE FOLLOWING:** R.S.A.No.964/2006 **2** ## JUDGMENT This Regular Second Appeal has been directed against the judgment and decree in A.S.No.1/2001 on the file of Sub Court, Kottayam, which in turn arise out of the judgment and decree in O.S.No.438/1998 on the file of Additional Munsiff's Court, Kottayam. 2. Appellants are the defendants in the above suit. Pending the R.S.A., first appellant died and appellants 2 & 3 are recorded as the legal heirs of the deceased first appellant. The suit has been filed by the respondent/plaintiff seeking a permanent prohibitory injunction for restraining the appellants/ defendants (hereinafter be referred as the defendants) from trespassing into the plaint schedule room No.XIV/701 in Kottayam Municipality. The first defendant had been in possession of the plaint schedule property room as a tenant while the plaintiff purchased the property including the plaint schedule room. After the purchase plaintiff issued registered notice demanding arrears of rent. After that first defendant surrendered the building after paying the arrears of rent, on 30.07.1997. On 30.05.1998 the defendants made attempt to R.S.A.No.964/2006 **3** trespass into the plaint schedule room, hence the suit has been filed. 3. Defendants filed written statement with counter claim denying the possession of the room by the plaintiff or the power of attorney holder. The plaint schedule room is in possession of the first defendant as a tenant along with his sons who are defendants 2 and 3 and they conducted business in the name and style 'Olimpic Agencies' at Pulimood Junction. The plaintiff's power of attorney holder and his men broke open the main lock of the plaint schedule room and forcibly removed the articles kept therein. The suit has been filed thereafter without any bonafides. After the purchase of property by the plaintiff an advocate notice was sent to the 1[st] defendant claiming arrears of rent. On receipt of notice a cheque drawn on District Cooperative Bank, Kottayam was issued to the plaintiff for encashment and the plaintiff received the amount. A receipt was also issued in favour of the power of attorney holder of the plaintiff with regard to the same. The third defendant went to see the power of attorney holder subsequently to pay the rent but the receipt issued was forcibly taken and torn away and the plaintiff threatened the 1[st] defendant and asked to surrender the R.S.A.No.964/2006 **4** building portion without any delay. Thereafter third defendant filed complaint before Superintendent of Police on 28.05.1998. The building was never surrendered to the plaintiff as alleged. The first defendant paid electricity consumption charge subsequent to 30.07.1997. At the time of forceful dispossession, telephone was kept inside the building and plaintiff attempted to create documents after trespass. No business is being conducted by the plaintiff in accordance with the licence issued by the Municipality. All the documents produced are false and concocted. 4. The defendants filed counterclaim seeking recovery of plaint schedule building. Plaintiff filed replication to the counterclaim denying the averments in the written statement and reiterating the averments in the plaint. 5. PWs 1 to 4 examined and Exts.A1 to A12 were marked from the side of the plaintiffs. DWs 1 & 2 examined and Exts.B1 to B12 were marked from the side of the defendants. Ext.C1 and Exts.X1 to X1(b) were further marked. 6. On evaluating the facts, circumstances and evidence, the trial court found that though the plaintiff is in possession of the suit property as on the date of suit, it has come out that the R.S.A.No.964/2006 **5** plaintiff obtained possession of the premises without the knowledge and consent of the defendants and refused the prayer for injunction stating that the court is not a forum to legalize an illegal action of the plaintiff on the strength of illegal possession. Defendants is not in possession of the schedule property on the date of counterclaim and it is further found that since the plaintiff did not admit the first defendant as the tenant of the scheduled building and there is no landlord – tenant relationship the defendants have to establish their leasehold right and hence a mere suit for recovery of possession is not maintainable and it is necessary to declare the status of the defendants as lessee for granting the prayer for recovery of possession and accordingly the counterclaim sought for also dismissed. 7. Against the judgment and decree passed by the trial court dismissing the suit, plaintiff filed A.S.No.222/2000 and against the dismissal of the counterclaim defendants filed A.S.No.1/2001. Both appeals were heard together and a common judgment was passed by which the appellate court confirmed the judgment and decree passed by the trial court and dismissed the appeals. Plaintiff did not further challenge the judgment and decree in A.S.No.222/2000 and accordingly it has become final. R.S.A.No.964/2006 **6** Aggrieved by the dismissal of A.S.No.1/2001 the defendants approach this Court in the second appeal. 8. Appeal was admitted on the following substantial questions of law formulated in the appeal memorandum, which reads thus: 1. Having found that the defendants are the lawful tenants in respect of the plaint schedule property and having further found that they were forcibly evicted from the tenanted premises by the plaintiff, are not the courts below in serious error in not decreeing the counter claim made by the defendants for recovery of possession of the tenanted premises on the strength of their title as tenants in respect of the schedule property? 2. Are not the courts below in error in non- suiting the defendants in the matter of their counter claim on the reasoning that the defendants did not ask for a declaration of their title as tenants to the schedule room and that they prayed only for a decree for recovery of possession of the tenanted premises? 3. Are not the courts below in serious error in rejecting the counter claim of the defendants on the ground that Section 6 of the Specific Relief Act cannot be invoked in the absence of evidence to show that they were dispossessed within six months from the date of the counter claim, in view of the admitted finding that the defendants were forcibly evicted by the plaintiff from the tenanted premises? 9. Lower court records were called for and both sides R.S.A.No.964/2006 **7** were heard. 10. According to the learned counsel for the appellants/defendants both courts illegally refused to grant the counterclaim sought for by the defendants even after finding that the defendants were forcefully dispossessed from the tenanted premises by the plaintiff. He would contend that the dismissal of the suit finding that plaintiff illegally dispossessed the defendants from the tenanted premises has become final since the concurrent findings in that regard made by the courts below is not challenged by the plaintiff. According to him, once it is found that the defendants were forcefully dispossessed from the tenanted premises and the prayer of the plaintiff-landlord to restrain the defendants from trespassing into the plaint schedule property was refused by the courts below, there is no rationale or justification in not ordering recovery of possession of the plaint schedule property to the defendants. Since the defendants were forcefully dispossessed the tenancy right continues and hence legally the defendants are entitled to get recovery of possession. The finding of the trial court that the mere prayer for recovery of possession is not maintainable without a prayer for declaration of tenancy right is also perverse because the tenancy R.S.A.No.964/2006 **8** right continues even after forceful dispossession. It is also his contention that the first appellate court refused the prayer for recovery of possession finding that the reliefs sought for is under Section 6 of the Specific Relief Act and it is beyond the period of six months. The defendants could not prove his possession prior to 02.06.1998 and the case of the defendants that they were forcefully evicted on 02.06.1998 is not convincing and hence the defendants are found to be not entitled for recovery of possession as per Section 6 of the Specific Relief Act. That finding also, according to the learned counsel, is factually and legally incorrect. 11. The learned counsel for the respondent/plaintiff on the other hand supports the findings made by the courts below and according to him no interference is called for in the concurrent findings made by the courts below dismissing the counterclaim. 12. Based on the above, the following points arise for consideration: - (i) Whether the tenancy right of the defendants with respect to the plaint schedule room is subsisting? - (ii) Whether prayer for recovery of possession is not maintainable without a prayer for R.S.A.No.964/2006 **9** declaration of the tenancy right? (iii) Whether there is bar under Section 6 of the Specific Relief Act in granting the relief of recovery of possession? ## Point Nos.(i), (ii) & (iii) : 13. Certain facts are concluded since no appeal has been filed by the respondent/plaintiff against the concurrent findings made by the courts below. It has been found by the courts below that the case of the plaintiff that the defendants surrendered the building is not correct. The plaintiff has come into possession of the building not in a lawful manner. So even though there is a finding by the trial court as well as the first appellate court that the defendants failed to prove that he was in possession of the scheduled building on 02.06.1998,the findings made by the courts below is conclusive that the defendants have been dispossessed from the schedule building unlawfully or that the case put forwarded by the plaintiff that the defendants surrendered the building on 30.07.1997 is unbelievable. So in effect it has been concurrently found that the defendants have been dispossessed from the plaint schedule building than by due process of law and hence the forceful or illegal dispossession of R.S.A.No.964/2006 **10** the tenanted premises will not in anyway extinguish the tenancy right of the defendants with respect to the plaint schedule room. So the findings by the trial court that there is a duty cast on the defendants to establish his leasehold right and without a prayer for declaration, a simple suit for recovery of possession is not maintainable etc. are erroneous. The forceful dispossession of the tenanted premises will not in anyway result in extinguishment of the leasehold right of the tenant from a tenanted premises. The first appellate court concurred with the trial court and found that the defendants could not establish with clear evidence that he was evicted from the plaint schedule building on 02.06.1998 and it is also found that Ext.A7 to A10 documents compels the court to hold that the plaintiff was in possession even prior to 02.06.1998. So the suit filed after six months of dispossession for recovery of possession under Section 6 of the Specific Relief Act is held to be not allowable by the first appellate court. 14. The counterclaim has been sought, for recovery of possession of the tenanted premises on the strength of the tenancy right of the defendants. Though it has already been found that the tenancy right of the defendants subsist with R.S.A.No.964/2006 **11** respect to the plaint schedule room, admittedly the said building in which plaint schedule room was situated has been demolished and a new building has been constructed by the plaintiff. As stated above the tenancy right of the defendants with respect to the plaint schedule room subsist since he has been evicted than by due process of law. So the crucial question is whether after the demolition or destruction of the building, the tenancy right would subsist. In this context the learned counsel for the defendants relied on Shaha Ratansi Khimji v. Proposed Kumbhar Sons Hotel Pvt.Ltd [2014 (3) KLT 1014 (SC)] wherein the concurrent findings of the trial court and the first appellate court has been affirmed by the High Court of Judicature at Bombay in second appeal to the effect that tenancy right would lapse after the destruction of the building. On coming up for consideration of the above issue considering the inconsistency in the view taken by the Apex Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee [(2001) 1 SCC 564] and T.Lakshmipathi & Ors. v. R.Nithyananda Reddy & Ors. [(2003) 5 SCC 150] , the Apex Court had made a detailed evaluation of the law in the field. Section 105 of the Transfer of Property Act which defines ‘lease’, Section 108 which deals with 'rights & liabilities of lessor and R.S.A.No.964/2006 **12** lessee', and Section 111 which deals with 'determination of lease' have been discussed and it has been ultimately found in paragraph No.22 that once the right of lease is transferred in favour of the lessee, the destruction of a house/building constructed on the lease property does not determine the tenancy rights of occupant which is incidental to the contract of the lease which continues to exist between the parties. The said paragraph is relevant to be extracted, which reads thus: 22.Immovable property means landed property and may include structures embedded in the earth such as walls or buildings for the permanent beneficial enjoyment. A lease of immovable property is a transfer of right to enjoy such property in consideration of price paid as per Section 105 of the T.P. Act. By way of lease, a right and interest is created which stands transferred in favour of the lessee. The immovable property, thereafter, only can be reverted back on determination of such right and interest in accordance with the provisions of the T.P. Act. Therefore, once the right of lease is transferred in favour of the lessee, the destruction of a house/building constructed on the lease property does not determine the tenancy rights of occupant which is incidental to the contract of the lease which continues to exist between the parties. The judgment of this Court in V. Kalpakam Amma v. Muthurama Iyer Muthurkrishna Iyer, (1994 (2) KLT 424 = R.S.A.No.964/2006 **13** AIR 1995 Ker. 99) is also quoted therein, where, it has been held that there cannot be a building without a site and once a structure is put up in the land the site becomes the part of the structure and, thereafter the site becomes part of the building. Entry 49 of Schedule VII of the Constitution of India includes the site of the building as its component part. The Corporation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240 is further quoted wherein with reference to the meaning of the word “building” occurring in Section 197 (1) of the Statutes of British Columbia 1914, it has been held that the word must receive its natural and ordinary meaning as “including the fabric or which it is composed, the ground upon which its walls stand and the ground embraced within those walls”. The meaning of the word 'building' in Black’s Law Dictionary (5th Edn.), is further extracted, which reads thus: “A structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof”. So evaluating the entire aspects it has been found by the Apex Court that the ‘building’ must take in the site also, as part of it and without site, there cannot be a structure and the site becomes an integral part of the building. Without a site, the super structure of the R.S.A.No.964/2006 **14** building on the land cannot normally exist. Thus, when there is a lease of a building, such lease would normally take in the site unless it specifically excluded from the land.” Paragraph Nos.32 and 33 were highlighted by the learned counsel, which reads thus: 32. It is apt to note here that when there is a lease of a house or a shop it cannot be treated as a lease of structure but also a lease of site. The Court referred to the decision in D.G. Gose & Co. (Agents) (P) Ltd. v. State of Kerala (1980) 2 SCC 410 wherein this Court held that the site of the building is a component part of the building and, therefore, inheres in it the concept or ordinary meaning of the expression “building”. The Court also placed reliance on Corpn. of the city of Victoria v. Bishop of Vancouver Island (AIR 1921 PC 240). 33. It has been further opined that once a tenancy is created in respect of a building standing on the land it is the building and the land which are both components of the subject-matter of demise and the destruction of the building alone does not determine the tenancy when the land which is the site of the building continues to exist. This interpretation, as we find, is in accord with Section 108 of the Act. It is reflectible that in Vannattankandy Ibrayi’s case, the two-Judge Bench observed that the rights stand extinguished as on the distinction of the demise, for there is destruction of the superstructure and in its non-existence there is no subject matter. Thus, the R.S.A.No.964/2006 **15** land has been kept out of the concept of subject matter. In our considered opinion, the Court in the said case failed to appreciate that there are two categories of subject-matters, combined in a singular capsule, which is the essence of provision under the Transfer of Property Act and not restricted to a singular one, that is, the superstructure. In T. Lakshmipathi (supra) the Court took note of the fact that the land and superstructure standing on it as a singular component for the purpose of tenancy. It is in tune with the statutory provision. Therefore, we agree with the proposition stated therein to the affect that “in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of the subject-matter of demise and the destruction of the building alone does not determine the tenancy when the land which was the site of the building continues to exist”. On the touchstone of this analysis, we respectfully opine that the decision rendered in Vannattankandy Ibrayi (supra) does not correctly lay down the law and it is, accordingly, over-ruled. So the above dictum laid down by the Apex Court would leave no room for doubt to conclude that lease of a building includes the site on which the building stands and the land and building are the subject matter of demise. Hence, the whole building in which a room in occupation by the defendants was demolished by the plaintiff and construction of a new building in its place itself will R.S.A.No.964/2006 **16** not take away the tenancy right of the defendants. 15. The learned counsel for the defendants would relies on Shaha Ratansi Khimji . In that decision also, taking into consideration the fact that the appellant was not in possession of the suit property for quite long time the Apex Court was not inclined to direct restoration of possession of the suit property to the appellant. Instead of that the Apex Court directed the respondent to pay a sum of Rs.20 lakhs in favour of the appellant towards compensation for depriving the appellant from enjoying the suit property within two months with interest at the rate of 6% per annum from the date of that judgment. 16. In this case also, according to the defendants, they are out of possession of the building from 02.06.1998. According to the learned counsel for the defendants, the building was situated in a prime locality at Pulimoodu junction in Kottayam district and it would fetch high value and hence applying the ratio in Shaha Ratansi Khimji at least an amount of Rs.25 lakhs to be ordered towards compensation to the defendants. 17. On perusal of the written statement filed by the defendants and the counterclaim, it could be seen that rent for the past one year is shown as Rs.1,440/-. So the rent for one R.S.A.No.964/2006 **17** month was Rs.120/-. That was in the year 1998. So, taking that aspect into account, in the absence of any other material before the court, the damages for keeping the defendants out of the premises for the last about 25 years and the long pending litigation to which the defendants were subjected to and the cost and the loss suffered on that account etc, I am of the considered view that an amount of Rs.10 lakhs can be fixed as the compensation for depriving the defendants from enjoying the suit property. 18. With regard to the findings of the first appellate court that the suit filed for recovery of possession as per Section 6 of the Specific Relief Act is not maintainable since the defendants could not establish that he was evicted on 02.06.1998 or that the documents produced from the side of the plaintiff would prove that the plaintiff was in possession even prior to 02.06.1998 and hence recovery of possession on the strength of Section 6 of the Specific Relief Act is not maintainable, the contention of the learned counsel for the defendants is that the counterclaim was valued for recovery of possession on the strength of the title (leasehold right) of the defendants and valuation has been made by computing past one year's rent and it is to be treated as a suit R.S.A.No.964/2006 **18** based on title of tenancy and hence the suit cannot be taken as one under Section 6 of the Specific Relief Act. Hence, Article 65 of the Limitation Act would apply. In this context the learned counsel relies on Padmavathi v. Kesava Reddi [1987 (2) KLT 386], wherein, it has been held that, in suits for declaration of title and recovery of possession based on title, the period of limitation is governed by Article 65 of the Limitation Act and the period of limitation is 12 years. Here also the suit is filed for recovery of possession of the tenanted premises. So it will come under Article 65 of the Limitation Act. So the counter claim can not be treated as one under section.6 of Specific Relief Act. There is also a finding by the trial court that a declaration of the legal character is mandatory in a case where the landlord denies the legal character as per Section 34 of the Specific Relief Act. 19. In this case, it has already been found that the tenancy right of the defendants will not extinguish due to forceful dispossession of the building at the instance of the plaintiff. Since it has been found that the defendants' tenancy right continues even after the forceful dispossession, the necessity of declaration of that right does not arise at all. In this context the learned counsel for the defendants relies on Kurella Naga R.S.A.No.964/2006 **19** Druva Vudaya Bhaskara Rao v. Galla Jani Kamma Alias Nacharamma [2008 (15) SCC 150 : AIR 2009 SC Supp 690 : 2008 KHC 7175] wherein while dealing with Sections 5, 6, 37, 38 of the Specific Relief Act, 1963 and Order 20 Rule 12 of the Code of Civil Procedure, 1908, it has been held by the Apex Court that a mere claim by the defendant that he had perfected his title by adverse possession, does not mean that a cloud is raised over plaintiff's title and that the plaintiff who is the owner, should file a suit for declaration of title and unless the defendant raises a serious cloud over the title of the plaintiff, there is no need to file a suit for declaration. 20. In the present case, though the plaintiff contended that defendants surrendered the building on 30.07.1997, both courts below were not prepared to accept that contention and it has been found concurrently that the defendants have been evicted than by due process of law. 21. In the foregoing paragraphs, it has already been found that the tenancy right of the defendants continues inspite of the fact that he has been forcefully dispossessed from the plaint schedule room. Since there is a finding already that the tenancy right of the defendants continues the question of necessity to R.S.A.No.964/2006 **20** declare the right does not arise also. 22. Based on the above findings, the judgment and decree concurrently passed by the courts below are hereby set aside and appeal disposed of directing the plaintiff to pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) within two months to the appellants/defendants towards compensation for depriving the appellants from enjoying the plaint schedule room for the last several years, failing which, the respondent/plaintiff would be liable to pay interest at the rate of 5.5% per annum from the date of this judgment on the said amount. Appellants/defendants are also entitled to get cost of this proceedings. Shg Sd/- **M.R.ANITHA JUDGE**