Hindustan Petroleum Corporation Ltd. v. Plaintiffs 1 to 5 & Defendants 2 to 15

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944** **RSA NO. 1274 OF 2010** **AGAINST THE JUDGMENT IN AS 100/2007 OF I ADDITIONAL DISTRICT COURT,** ## **ERNAKULAM** **OS 303/2004 OF II ADDITIONAL SUB COURT,ERNAKULAM** **-----** ## **APPELLANT/RESPONDENT/1ST DEFENDANT:** HINDUSTAN PETROLEUM CORPORATION LTD., TATA ROAD, POST BOX NO.2612, ERNAKULAM, KOCHI - 31, REPRESENTED BY ITS REGIONAL MANAGER. BY ADVS. SRI.E.K.NANDAKUMAR SRI.NITHIN GEORGE K. SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI ## **RESPONDENTS/APPELLANTS 1 TO 5 & RESPONDENTS 2 TO 15/PLAINTIFFS 1 TO 5 &** **DEFENDANTS 2 TO 15:** 1 E.A.SANKARANARAYANAN BHATTATHIRIPAD, **(DIED; LHRs RECORDED)** AGED 72, S/O.AARYAN BHATTATHIRIPAD, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. ## **(R6, R11 AND R12 ARE RECORDED AS LEGAL HEIRS OF DECEASED R1 AS PER ORDER DATED 08.12.2022 IN MEMO DATED 08.12.2022).** 2 E.A.SREEDHARAN BHATTATHIRIPAD, **(DIED; LHRs RECORDED)** AGED 68, S/O.AARYAN BHATTATHIRIPAD, RESIDING AT "RAJASREE", EDATHAMARA MANA, CENTRAL SCHOOL ROAD, KADAVANTHRA ROAD. ## **(R7, R13 AND R14 ARE RECORDED AS LEGAL HEIRS OF DECEASED R2 AS PER ORDER DATED 08.12.2022 IN MEMO DATED 08.12.2022).** 3 E.A.RAMAN BHATTATHIRIPAD, AGED 65, S/O.AARYAN BHATTATHIRIPAD, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD, KOCHI. **RSA NO. 1274 OF 2010 -2-** - 4 E.A.CHERIYA AARYAN BHATTATHIRIPAD, **(DIED; LHRs RECORDED)** AGED 61, S/O.AARYAN BHATTATHIRIPAD, RESIDING AT “SREESYLAM”, EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. ## **(R16 AND R18 ARE RECORDED AS LEGAL HEIRS OF DECEASED R4 AS PER ORDER DATED 10.06.2014 IN MEMO DATED 03.03.2012 VIDE CF.2732/2012).** - 5 E.A.VIRUPAKSHAN BHATTATHIRIPAD, AGED 57, S/O.AARYAN BHATTATHIRIPAD, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. - 6 PARVATHY ANTHARJANAM, W/O.E.A.SANKARANARAYANAN BHATTATHIRIPAD, AGED 57, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD, KALOOR P.O. - 7 NALINI ANTHARJANAM, W/O.E.A. SREEDHARAN BHATTATHIRIPAD, AGED 57, RESIDING AT "RAJASREE", EDATHAMARA MANA, CENTRAL SCHOOL ROAD,KADAVANTHRA. - 8 SREEDEVI ANTHARJANAM, W/O.E.A.RAMAN BHATTATHIRIPAD, AGED 51, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD, KOCHI. - 9 NIRMALA ANTHARJANAM, W/O.E.A.CHERIYA AARYAN BHATTATHIRIPAD, AGED 53, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. - 10 SANTHA ANTHARJANAM, W/O.E.A. VIRUPAKSHAN BHATTATHIRIPAD, AGED 53, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. 11 E.S.MADHU, S/O.E.A. SANKARANARAYANAN BHATTATHIRIPAD, AGED 35, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. - 12 E.S.MAHESH, S/O.E.A. SANKARANARAYANAN BHATTATHIRIPAD, AGED 32, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. 13 E.S.RAJESH, S/O.E.A. SREEDHARAN BHATTATHIRIPAD, AGED 33, RESIDING AT "RAJASREE", EDATHAMARA MANA, CENTRAL SCHOOL ROAD, KADAVANTHRA. **RSA NO. 1274 OF 2010 -3-** 14 SREEJA NARAYANAN, D/O.E.A. SREEDHARAN BHATTATHIRIPAD, AGED 32, RESIDING AT "RAJASREE", EDATHAMARA MANA, CENTRAL SCHOOL ROAD, KADAVANTHRA. 15 MINI SANTHOSH, D/O.E.A.RAMAN BHATTATHIRIPAD, AGED 29, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD,KOCHI. 16 SARITHA D/O.E.A.CHERIYA AARYAN BHATTATHIRIPAD, AGED 23, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. 17 GOUTHEM ARYAN, S/O.E.A.VIRUPAKSHAN BHATTATHIRIPAD, AGED 25, RESIDING AT "SREESYLAM",, EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. 18 AMRITHA, D/O.E.A.CHERIYA AARYAN BHATTATHIRIPAD, AGED 24, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. 19 NEELIMA, D/O.E.A.VIRUPAKSHAN BHATTATHIRIPAD, AGED 25, RESIDING AT "SREESYLAM", EDATHAMARA MANA, KALOOR, KADAVANTHRA ROAD. BY ADV SRI.MADHU N.NAMBOOTHIRIPAD THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.1274 of 2010** **= = = = = = = = = = = = = = = = = = Dated this the 8[th] day of December, 2022** ## **J U D G M E N T** The suit for eviction with damages for use and occupation, filed by the landlord against the tenant, though dismissed by the trial court was decreed in appeal. Aggrieved, the tenant-the first defendant, is in appeal. 2. The plaint schedule property is 11.478 cents. Admittedly the property belonged to the predecessor of the plaintiffs and defendants 2 to 15. On 17.12.1953, Ext.A1 Lease Deed was executed between the predecessor of the plaintiff and M/s Caltex India Ltd., the predecessor-in-interest of the first defendant, for erection and running of petroleum retail outlet. The period of lease was for 10 years from 01.03.1953. On 08.02.1963, a fresh lease deed, Ext.A2, was executed for a further period of ten years from 08.02.1965. Thereafter, another lease deed, Ext.A3, was executed in ## **R.S.A. No.1274 of 2010** -: 2 :- the year 1976, for another term of ten years from 01.03.1973. In the meanwhile, the Caltex Act of 1979 came into force. In terms of Section 7(3) of the said Act, all leases stood extended for a further period of ten years from the date of expiry. Thus the term of Ext.A3 lease expired on in the year 1993. The suit is filed seeking eviction and for damages for use and occupation. 3. The first defendant contended that Exts.A2 and A3 are only renewal of the earlier lease under Ext.A1. Therefore, as tenant they put up buildings prior to 20.05.1967 and have the right of non-evictability under Section 106 of the Kerala Land Reforms Act. 4. The trial court held that the first defendant is a lessee, who had based on the lease, put up buildings prior to 20.05.1967 and hence entitled to the protection under Section 106 of the Kerala Land Reforms Act. On appeal, the first appellate court held that, consequent **R.S.A. No.1274 of 2010** **==> picture [34 x 9] intentionally omitted <==** to the execution of Exts.A2 and A3 lease deeds, fresh lease arrangements have been entered into thereunder, and hence the first defendant is not entitled to get the benefit under Section 106 of the Kerala Land Reforms Act. 5. Heard Sri. Gopikrishnan Nambiar, learned counsel for the appellant-first defendant and learned Senior Counsel Sri.T.Krishnanunni on behalf of the respondent, on the following substantial questions of law:- _(i) Is the finding of the first appellate court that, by execution of Exts.A2 and A3 lease deeds, fresh lease arrangements have come into existence, correct in law ?_ _(ii) Has the first defendant proved the ingredients to satisfy the requirements under Section 106 of the Kerala Land Reforms Act ?_ 6. Relying on the judgment of the Apex Court in _**T.K.Lathika v. Seth Karsandas Jamnadas (AIR 1999 SC 3335)**_ and _**N.M.Ponniah Nadar v. Kamalakshmi Ammal (AIR 1989 SC 467),**_ the **R.S.A. No.1274 of 2010** -: 4 :- learned counsel for the appellant would contend that, a mere variation of rent by execution of a deed of lease does not amount to implied surrender of the existing lease. Therefore, though Exts.A2 and A3 lease deeds are executed, there is no fresh arrangement. It is only the continuation of the original lease arrangement. The first defendant having put up constructions prior to 20.05.1967 for commercial purpose, has acquired the right of non-evictability under Section 106 of the Kerala land Reforms Act, he contends. 7. It is to be noted that, the lease deeds Exts.A1, A2 and A3 are for definite terms of ten years. Section 111(a) of the Transfer of property Act provides for determination of lease on the efflux of the term of the lease. The said provision reads thus:- _“_ _**111. Determination of lease** .— A lease of immovable property determines—_ ## _(a) by efflux of the time limited thereby.”_ **R.S.A. No.1274 of 2010** -: 5 :- 8. Therefore, on the expiry of the period of lease viz. 10 years each granted under Exts.A1, A2 and A3 respectively, the term of the lease expires. The execution of the subsequent lease deed could only amount to grant of a fresh lease. The decisions referred to by the learned counsel for the appellant dealt with situations where during the currency of the lease a fresh lease deed was executed. Under such circumstances, it was held that there is no implied surrender by the mere execution of fresh deeds varying the rent. 9. In the case at hand, as noticed above, there is determination of lease by efflux of time. It is thereafter that fresh lease deeds are executed. It is also to be noticed that, the term of lease under Ext.A1 expired on 01.03.1963 whereas, Ext.A2 is executed only on 08.02.1965. It is stated that the lease is to commence from 01.03.1963. Similar is the case of Ext.A3 lease deed. The lease under Ext.A3 terminated by efflux ## **R.S.A. No.1274 of 2010** -: 6 :- of time on 01.03.1973. Ext.A3 is executed only on 15.03.1976 though it is stated that the lease is to commence from 01.03.1973. In _**Bharat Petroleum Corporation Ltd., Mumbai & Ors. v. T.S.Kalyanaraman and Ors. (2014 1 KHC 263)**_ this Court held that, there could not be creation of such retrospective leasehold right. In the said judgment this Court referring to various decisions of the Apex Court, noted the distinction between “extension” and “renewal” of lease, and held that the renewal of lease amounts to a fresh lease. 10. It is beyond cavil that it is for the first defendant to prove the entitlement of the benefit under Section 106 of the Kerala Land Reforms Act. It was for them to prove that, pursuant to Ext.A2 lease dated 08.02.1965 they had put up a building for such commercial purpose prior to 20.05.1967. However, no evidence has been adduced by them. The first defendant thus having failed to establish his entitlement, the **R.S.A. No.1274 of 2010** -: 7 :- first appellate court was right in having negatived the plea and decreed the suit. Substantial questions of law _(i)_ and _(ii)_ are answered accordingly. 11. Having found that the defendant is not entitled for the benefit under Section 106 of the Kerala Land Reforms Act, and the period of lease having been expired, necessarily, the plaintiff is entitled to have the first defendant evicted from the premises. 12. Now coming to the claim for damages for use and occupation, the plaintiff has claimed the same at the rate of ` 300/- per month with interest at the rate of 12% per annum. It appears that the first appellate court has granted a decree for realisation of ` 3,000/- per month by misreading the figure ‘300’ mentioned in relief (C) in the plaint as ‘3000’. Even under Ext.A3 lease deed of the year 1976, the rate of rent fixed was ` 100/- per month. Therefore, the claim for ` 300/- per month made in the year 2004 could not, by any stretch of **R.S.A. No.1274 of 2010** -: 8 :- imagination, be held to be unreasonable. The plaintiff is entitled for damages for use and occupation at the said rate from the date of suit till obtaining possession. 13. Though the plaintiff has claimed interest at the rate of 12% per annum, considering the prevailing banking rate of interest, interest at the rate of 9% is considered to be just and reasonable. Resultantly, the Regular Second Appeal is allowed in part. The decree of the first appellate Court for compensation is set aside. A modified decree is passed allowing the plaintiff to realise an amount of ` 300/per month as damages for use and occupation, with interest at the rate of 9% per annum, from the date of suit till date of decree and thereafter also at the same rate till surrender of vacant possession of the plaint schedule to the plaintiffs. The decree and judgment of the first appellate court ordering eviction of the first **R.S.A. No.1274 of 2010** -: 9 :- defendant from the plaint schedule property is confirmed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge