John Pailee @ Sunny v. KuriaKose

A.S. 77/2003 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941** ## **AS.No.77 OF 2003** **AGAINST THE JUDGMENT IN OS 313/1997 DATED 27-06-2002 OF PRINCIPAL SUB COURT,THRISSUR** ## **APPELLANT/DEFENDANT:** **JOHN PAILEE @ SUNNY AGED 32 YEARS SON OF V.U.PAILEE, VELLITHOTTATHIL HOUSE, P.O.KUNDUKAD, KUNDUKAD DESOM, KILLANNUR VILLAGE, THRISSUR TALUK.** **BY ADVS. SRI.P.R. VENKETESH SRI.K.S.BHARATHAN SRI. K. GEORGE SRI. M.A. ANZAR** ## **RESPONDENT/PLAINTIFF:** **KURIAKOSE, AGED 50 YEARS** **SON OF P.T.CHERIAN, PERIYIL HOUSE, KUNDUKAD DESOM, KILLANNUR VILLAGE, THRISSUR TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.C.GEORGE, AGED 48 YEARS, SON OF P.T.CHERIAN, PERIYIL HOUSE, KUNDUKAD DESOM, KILANNUR VILLAGE, THRISSUR TALUK.** **R1 BY ADV. SRI.M. GEORGE THOMAS R1 BY ADV. SRI.P.VIJAYA BHANU** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28.03.2019, THE COURT ON 21.08.2019 DELIVERED THE FOLLOWING:** A.S. 77/2003 2 ## **JUDGMENT** **Dated this the 21st day of August 2019** Feeling aggrieved by the judgment and decree in O.S. No.313/1997 on the file of the Principal Sub Court, Thrissur, the defendant has come up with this appeal. The suit filed by the plaintiff for recovery of possession on the strength of title was decreed by the learned Sub Judge by a judgment and decree dated 27[th] June, 2002. 2. For the sake of convenience, the parties to the suit are referred to as 'the plaintiff' and 'the defendant' in this appeal. 3. Facts of the case in a nutshell are as follows: The plaint schedule property is an extent of 23.100 cents comprised in Sy. No. 185/5 and 187/1 of Thrissur Village. The plaintiff purchased the property as per Sale Deed Nos. 4080/90, 4188/90 and 4189/90 of SRO, Thrissur. As he was A.S. 77/2003 3 working abroad, he executed a power of attorney on 1.11.1990 in favour of the defendant to take care of the plaint schedule property and thus the defendant, who is his brother-in-law was looking after the plaint schedule property. A building with a compound wall and a well were constructed by the plaintiff in the plaint schedule property. Thereafter, he entered into an oral agreement with the defendant for commencing a workshop under the name and style 'We You Maruthi Service' and to run the business in partnership. The understanding was to meet the expenses for the construction of the building by the plaintiff, to purchase the machineries with the funds of the defendant and to share the profit and loss equally between them. But the defendant was not crediting the profit in the account of the plaintiff and hence, the power of attorney executed by him in favour of the defendant was cancelled and the said information A.S. 77/2003 4 was given to the defendant and also published in Mathrubhumi daily. The plaintiff came back to his native place in the month of July, 1996 and approached the defendant and demanded him to surrender the property, but he refused to do so raising untenable contentions. So the plaintiff was compelled to issue a lawyer notice dated 17.8.1996 and to file the suit to recovery possession with mesne profits at the Rs.1,200/- per year from July, 1996 onwards. 4. The defendant refuted the plaint allegations inter alia contending that the plaint schedule property was purchased by him with his own funds. The plaintiff has no title or possession over the same. The title deed was executed in the name of the plaintiff as it was told by him that being a nonresident of India, he will get some incentives and benefits an thus, the document was executed in his name. The building in A.S. 77/2003 5 the property was also constructed by the defendant with his funds by availing financial assistance from Canara Bank. The workshop was started with the financial assistance from the Bank and in fact the plaintiff had no right over the property and there was absolutely no agreement or understanding between them to share the profits. On 1.2.1991 the plaintiff had executed a lease deed in respect of the plaint schedule property. In fact, the plaintiff is not entitled to seek for a decree for recovery of the plaint schedule property. The structure was erected by him in the property. The plaintiff has in fact no right to get possession of the property or to share any profit as alleged. 5. The court below, after framing necessary issues, permitted both sides to adduce evidence. On the side of the plaintiff, PW1 was examined and Exts. A1 to A11 were marked. A.S. 77/2003 6 For the defendant, Exts.B1 to B23 were marked and he himself was examined as DW1 . Ext.C1 was also marked. 6. The court below, after appreciating the evidence, decreed the suit and thus allowed the plaintiff to recover possession of the plaint schedule property with mesne profits from July, 1996 till the date of absolute surrender. Challenge is with respect to the said judgment and decree. 7. Heard Adv. P.R. Venkatesh, the learned counsel for the appellant/defendant and Adv. P. Vijaya Bhanu, the learned counsel for the respondent/plaintiff. 8. The plaintiff and the defendant are brother-inlaws. Admittedly, the plaintiff was working abroad and the defendant was available at his native place. The suit was filed by the plaintiff for recovery of the plaint schedule property from the possession of the defendant on the strength of his title. The A.S. 77/2003 7 original title deeds produced before the court as Exts. B1 to B3 are in the possession of the defendant. Exts. A1 to A3 are the certified copies of the title deeds produced by the plaintiff. Exts.B5 and B6 are the two correction deeds executed so as to rectify the mistake crept in the documents. These two documents are also in the possession of the defendant. At the outset, it is to be noted that the defendant initially raised a contention that though all the documents stand in the name of the plaintiff, the sale consideration was paid by him and as the plaintiff informed him that if the documents were executed in favour of an NRI, they would get some incentives or benefits and thereby believing the words of the plaintiff, those documents were happened to be executed in the name of the plaintiff who was an NRI. But subsequently the said stand was changed and it appears that he had given up the contention that the sale A.S. 77/2003 8 consideration had been paid by him but the documents were registered in favour of the plaintiff. In short, the title of the plaintiff over the property is not in dispute 9. The plaintiff's definite case is that after purchase of the property, he constructed a building, a compound wall to protect the building and a well for its' convenient use, with his own money. But the documents pertaining to the constructions were happened to be in the name of the defendant who was entrusted to manage the construction of the building. His further case that they both decided to start a workshop by name 'We You Maruthi Service' on an understanding that the profit and loss from the business would be shared equally. But the defendant had denied the said partnership business transaction and his case is that a lease deed was executed on 1.2.11991 in his favour with respect to the plaint schedule property and on A.S. 77/2003 9 the strength of the lease deed which was for a period of 5 years, he was running the business in the building. The plaintiff has vehemently refuted the execution of a lease deed on 1.2.1991, as contended by the defendant. His definite contention was that he was not even available at his native place on 1.2.1991 or near days so as to execute a lease deed with respect to the property involved, and no such lease deed was infact executed between the parties. But the defendant, contended that as the document was not registered under Section 17 of the Registration Act, the unregistered document was not pressed into service to decide the issue but in order to prove the relationship between the plaintiff and the defendant it can be relied on. 10. Section 105 of the Transfer of Property Act is extracted for easy reference : A.S. 77/2003 10 “ 105. Lease defined .- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined .- The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.” ## Section 107 is also reproduced for the sake of convenience. “ 107. Leases how made . A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. A.S. 77/2003 11 Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and lessee. Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.” 11. So, according to the defendant the relationship between the parties could be evident from the lease deed though it was an unregistered document. He relies on a decision of the Apex Court in Anthony v. Ittoop (2000 KHC 608) to substantiate his contention that even if the lease deed is not treated as a valid document and not marked before the court, the non-registration of the document has only two consequences, mainly that no A.S. 77/2003 12 lease exceeding one year was created but, it will deem as a presumption that a lease arrangement was existing between the parties. To buttress his above contention, the learned counsel relies on para 9 of the said decision. In this decision, it could be seen that the lease deed executed exceeding one year was not registered and hence it was not treated as a valid lease under Sec. 105 of the Transfer of Property Act. But the Apex Court has not allowed eviction holding that the suit filed by the respondent therein as the plaintiff was liable to be dismissed without prejudice to his right to move under the provisions of the Rent Control Act for eviction of the appellant/respondent therein. 12. But coming to the facts of this case, it could be seen that the plaintiff has not admitted the execution of such a lease deed between him and the defendant. He had vehemently A.S. 77/2003 13 denied the execution of such a document relying on Ext.A9, his passport. Ext. A9 would establish the fact the plaintiff was not available at his native place on 1.2.1991 so as to execute a lease deed. It is revealed from Ext P9 passport of the plaintiff that during the alleged period, more precisely on the date of the alleged execution of the lease deed, the plaintiff was not even available at his native place. Hence, the contention of the plaintiff that a lease deed was not executed stands proved by Ext.A9. So, the decision relied on by the defendant will not help him to establish a lessor -leasee relationship. So, it could be seen that there exist no lease arrangement as contemplated under Section 105 of the Transfer of Property Act between the parties or any landlord-tenant relationship so as to contend that he could be evicted only under the provisions of the Building Lease and Rent Control Act. A.S. 77/2003 14 13. It has come out in evidence that when the relationship between the plaintiff and the defendant strained, the power of attorney executed by the plaintiff in favour of the defendant to manage the property stands cancelled by execution of Ext.A4. It has also come out in evidence that a building to run a workshop was constructed in the property. According to the plaintiff, it was constructed by utilizing his own money, but on the other hand the defendant contended that he had effected constructions in the property. To fortify his contention, he relies on Exts.B8 to B18. It reveals that after complying with all the formalities he got registration for running a workshop in the building. So, according to the defendant, the plaintiff could not recover the plaint schedule property as he is having lien over the property. The documents relied on by the defendant marked as Exts. B8 to B18 would establish the fact the buildings were A.S. 77/2003 15 constructed by him and the machineries were also erected by him. There is no convincing evidence available on record to show that the building was constructed by the plaintiff and the machineries were installed by the defendant on the understanding that the profit and loss will be shared by them equally and the defendant deviated from the terms of the agreement and that was the reason for cancelling the power of attorney executed by him in favour of the defendant. It is pertinent to note that the so called power of attorney had not been produced by the plaintiff in support of his case. Therefore, the entire terms and conditions are not discernible from the records available. But by Ext.A4, the power of attorney stands cancelled and Ext.A5 would show that it was published in a daily having circulation at the place where the property is situated. It is significant to note that the defendant relies on Section 221 of A.S. 77/2003 16 the Contract Act so as to support his case that he is having a lien on the property. 14. Section 182 of the Contract Act which defines Agent and Principal is also reiterated for easy reference : “ 182. 'Agent' and 'principal' defined .- An 'agent' is a person employed to do any act for another, or to represent another in dealings with third person. The person for whom such act is done, or who is so represented, is called the 'principal'.” Section 221 reads as follows: “ 221. Agent's lien on principal's property .- In the absence of any contract to the contrary, an agent is entitled to retain goods, papers, and other property, whether movable or immovable of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or accounted for to him.” 15. The learned counsel for the plaintiff has A.S. 77/2003 17 contended that Section 221 of the Contract Act has no application at this stage especially when the defendant had denied the sharing of capital. As far as the allegations levelled against the defendant that the profit was not shared by him, in paragraph 5 and 6 of his written statement he has specifically denied that there was no such oral agreement between the parties and there was no partnership business between them so as to share the profit and loss from the Service Centre carried on in the property, and so, there was no reason to account to the plaintiff regarding the profit or loss of his business. Since such a contention had been raised by the defendant and no evidence is available to discard the said contention, Section 221 of the Contract Act has no application in the case. So the argument advanced by the learned counsel for the defendant that as an agent he had a right of lien to have retention of the property till A.S. 77/2003 18 his dues are paid by the plaintiff has no merits. 16. From the evidence on record, it could be seen that the title to the property stands in the name of the plaintiff and the contention raised against that was fairly given up by the defendant. But it has also come out in evidence that the building in the property was constructed by the defendant and the machineries were installed by him. As the suit is one for recovery of possession of the property on the strength of title with mesne profits, the question to be looked into is only, whether the plaintiff could prove his title over the property. Though all the original documents of the property are still in the possession of the defendant, that alone is not sufficient to discard or reject the case of the plaintiff, especially when the parties are brother-in-laws and the plaintiff was working abroad during the time of acquisition of the property. So, the possibility A.S. 77/2003 19 to have custody of the documents with the defendant could only be natural and he is not entitled to get an order ignoring the title of the plaintiff. It is pertinent to note that the court below, considering the fact that the defendant had constructed the building and installed the machineries to run the service centre, had made a clause in favour of the defendant in para 12 which reads as follows: “12. However, it is made it clear that the suit is decreed in favour of the plaintiff without prejudice to the defendant's right, if any, under law to get back the value of building in accordance with law. He is also entitled to take back the machineries and equipments.” 17. On a meticulous evaluation of the entire evidence adduced by the parties, I do not find any ground to interfere with the finding of the court below that the plaintiff is entitled to recover possession of plaint schedule property from the A.S. 77/2003 20 defendant together with mesne profits at the rate of Rs.1200/per year from July, 1996, that is from the date of issuance of the lawyer notice by him to the defendant. I fully endorse the view taken by the learned trial Judge considering the nature of transaction involved and evidence on record. Hence, the judgment and decree under challenge are hereby confirmed. Accordingly, the appeal is dismissed, however, leaving the parties to bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** **sb**