Nazeer v. Jameel Sooraj and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943 RSA No.448 OF 2021 AGAINST THE JUDGMENT AND DECREE DATED 10.3.2021 IN A.S.NO.4/2018 OF THE SUB COURT, TIRUR & JUDGMENT AND DECREE DATED 18.11.17 IN O.S.NO.155/2013 OF THE MUNSIFF'S COURT, PARAPPANANGADI ## **APPELLANT/APPELLANT/DEFENDANT:** NAZEER, AGED 44 YEARS, S/O.MOHAMMEDKUTTY HAJI, PULLISSERI HOUSE, KANNAMANGALAM AMSOM, KANNAMANGALAM (PO), PIN – 676 304, TIRURANGADI TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, FAIZAL ZAMEEL, AGED 45 YEARS, S/O.ABDUSALAM, ILLIKKAL HOUSE, T.C.ROAD, TIRURANGADI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.JAMSHEED HAFIZ K.K.NESNA ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 JAMEEL SOORAJ, AGED 40 YEARS, S/O.POOZHITHARA KUNHALAN, KLARI AMSOM DESOM, KLARI (PO), PIN – 676 501, TIRURANGADI TALUK, MALAPPURAM DISTRICT. R.S.A.No.448 of 2021 ..2.. 2 SHAMSUDHEEN, AGED 36 YEARS, S/O.POOZHITHARA KUNHALAN, KLARI AMSOM DESOM, KLARI (PO), PIN – 676 501, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 3 RAMLALATHEEF, AGED 46 YEARS, D/O.POOZHITHARA KUNHALAN, KLARI AMSOM DESOM, KLARI (PO), PIN – 676 501, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 4 HASEENA BACKER, AGED 38 YEARS, D/O.POOZHITHARA KUNHALAN, KLARI AMSOM DESOM, KLARI (PO), PIN – 676 501, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN SRI.AJAI JOHN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09.07.2021, THE COURT ON 13.07.2021 DELIVERED THE FOLLOWING: R.S.A.No.448 of 2021 ..3.. ## **JUDGMENT** This Regular Second Appeal is directed against the judgment and decree dated 10.3.2021 in A.S.No.4/2018 of the Sub Court, Tirur which arose from the judgment and decree dated 18.11.17 in O.S.No.155/2013 of the Munsiff's Court, Parappanangadi. The appellant is the defendant and the respondents are the plaintiffs in O.S.No.155/2013. The parties are hereinafter referred to as 'the plaintiffs' and 'the defendant' according to their status in the trial court unless otherwise stated. 2. The suit was one for eviction. The case of the plaintiffs in short is as follows:- The plaintiffs are the title holders of plaint schedule building wherein the defendant has been in occupation of the same on a monthly rent of Rs.9,000/-. As per the agreement dated 11.12.11, the period of said R.S.A.No.448 of 2021 **==> picture [22 x 8] intentionally omitted <==** lease was extended for 11 months from 23.11.11 Thereafter the rent was enhanced to Rs.9,900/- per month. The plaint schedule building situates on the side of the National Highway at Edarikode. The rent of the plaint schedule building was paid to the 2[nd] plaintiff directly. The defendant had kept rent in arrears from 2013 April onwards. The lease got terminated by efflux of time. Though the plaintiffs demanded to give vacant possession of the plaint schedule building, the defendant was not ready for the same. The defendant filed O.S.No.118/13 before the Munsiff's Court, Parappanangadi restraining the plaintiff from evicting him forcibly. The plaintiffs issued a notice on 20.5.2013 terminating the tenancy. The notice was received by the defendant. Since the defendant is not ready to give vacant possession to the plaintiffs, the plaintiffs filed the present suit seeking vacant possession of the plaint schedule building from the possession of the defendant. R.S.A.No.448 of 2021 **==> picture [22 x 8] intentionally omitted <==** 3. The defendant filed written statement mainly contending that the defendant constructed a godown on the side of plaint schedule room having a sq.ft. of 1100 in Re.Sy.104/2 in the year 2005 at an expense of Rs.4,75,000/-. It is contended that even if the agreement is lease, the entrustment on the side of the plaint schedule building will become separate and the defendant is entitled to get protection under Section 60(b) of the Indian Easements Act. It is also contended that the lessee has made valuable improvement in the property expending more than Rs.4,75,000/-. According to him, there is no arrears of rent and the demand notice has been properly answered. 4. On the basis of the above pleadings, the trial court framed necessary issues and conducted trial. On the side of the plaintiffs PW1 was examined and marked Exts.A1 to A6. On the side of the defendant DWs.1 to 4 R.S.A.No.448 of 2021 **==> picture [22 x 8] intentionally omitted <==** were examined and marked Exts.B1 to B5. Exts.C1, C1(a) and C1(b) were also marked. 5. The trial court granted a decree for eviction. The defendant preferred first appeal before the first appellate court. It was also dismissed confirming the judgment and decree of the trial court. Hence this second appeal. 6. Heard Sri.Jamsheed Hafiz, the learned counsel for the appellant and Sri.P.Ramachandran, the learned counsel for the respondents. 7. The learned counsel for the appellant contended that a suit for eviction filed without issuing requisite notice as contemplated under Section 106 of the Transfer of Property Act is liable to be dismissed. According to the learned counsel for the appellant, the plaintiffs permitted the defendant by virtue of Ext.B5 that he has no objection in making improvements in the plaint schedule building and thereby he has acquiesced the act of the tenant. R.S.A.No.448 of 2021 **==> picture [22 x 8] intentionally omitted <==** 8. On the other hand, the learned counsel for the respondents contended that the first appellate court considered the validity of the notice issued under Section 106 of the Transfer of Property Act and held that the last tenancy was created for a period of 11 months from 23.11.2011. Hence, according to the learned counsel for the respondents, the tenancy stood terminated by the efflux of time on 22.10.2012. According to the learned counsel, after the expiry of lease period and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. The learned counsel for the respondents further submitted that the suit was filed way back in the year 2013 and the defendant has been placing unnecessary contentions to delay and protract the proceedings without any bonafides. R.S.A.No.448 of 2021 ..8.. 9. On going through the written statement the defendant did not raise any contention that the suit is premature. He also did not press for that issue before the trial court. Strangely enough, such an argument was raised for the first time before the first appellate court. It is a fact that the suit was filed on 11.6.2013. Even before serving summons on him, the period stipulated in Ext.A1 had expired. The law mandates only 15 days notice in writing for termination. In this case the suit was filed on the 20[th] day from the date of receipt of the notice. In the case on hand, the lease was terminated by Ext.A1. The period stipulated in Ext.A1 had also expired on 22.10.2012. In **V.Dhanapal Chettiar v. Yesodai Ammal** [1979 AIR 1745] the Apex Court held as follows:- _“A lease between a lessor and a lessee comes into existence by way of contract when the parties to the contract agree on rent, duration of tenancy and other relevant terms. Section 111 of the Transfer of_ R.S.A.No.448 of 2021 ..9.. _Property Act provides various methods by which a lease of immovable property can be determined. Under clause (h) of Section 111 a lease determines on the expiry of a notice to determine the lease given by the landlord to the tenant. Once the lease is determined by notice the lessor can enforce his right of recovery of possession of the property. If the lease does not stand determined under any of the clauses (a) to (g) of Section 111 notice under Section 106 Transfer of Property Act to determine the lease is necessary.”_ 10. In paragraph 7 of the first appellate court judgment it is stated that though the contention in the appeal memorandum is that the transaction is a license and the defendant has protection under Section 60(b) of the Indian Easements Act, such a case was given up by the counsel for the appellant during hearing. No such contention has been raised before this Court in second appeal. It is clear from the circumstances that the R.S.A.No.448 of 2021 **==> picture [28 x 8] intentionally omitted <==** defendant, who has been in occupation of the scheduled building, is raising untenable contentions to continue in the premises somehow or other. 11. Section 100 of the Code of Civil Procedure sets out the grounds on which a second appeal lies and Section 101 of the C.P.C. lays down in unambiguous terms that no second appeal lies except on the grounds mentioned in Section 100 of the C.P.C. Unless the appellant satisfies the conditions mentioned in Section 100 of the C.P.C., no second appeal lies. There are no questions of law involved in this case; far less any substantial questions of law. Hence, this R.S.A. is liable to be dismissed. 12. At this juncture, the learned counsel for the appellant/defendant submits that he may be given six months' time to surrender the building. In view of the Covid-19 pandemic prevailing in the State, it is just and proper to grant six months' time to the R.S.A.No.448 of 2021 **==> picture [28 x 8] intentionally omitted <==** appellant/defendant to surrender the plaint schedule building to the respondents/plaintiffs provided the appellant/defendant files an affidavit before the executing court on agreeing to surrender the premises within six months and also on depositing all arrears of rent accrued as on date within two weeks from the date of this judgment and in case of failure, the respondents/plaintiffs are at liberty to execute the decree in accordance with law. Resultantly, this R.S.A. is dismissed as stated above. There will be no order as to costs. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj