P. C. Joseph (Appellant) v. P. Rasheed and Valiyaplakath Alikoya (Respondents)

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 3[rd] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 RFA NO. 377 OF 2008 (B) AGAINST THE JUDGMENT & DECREE DATED 31.01.2008 IN OS No.141/2003 OF PRINCIPAL SUB COURT, PALAKKAD ## APPELLANT/2nd DEFENDANT: 1 P.C.JOSEPH (DIED) S/o JOSEPH, PUTHENVEETTIL HOUSE, KARANGAT PARAMBA, VADAKKENCHERRY.P.O, ALATHUR. ADDL.A2 MARYKUTTY JOSEPH, AGED 68 YEARS, W/o LATE JOSEPH, PUTHENVEETIL HOUSE, KARANGAT PARAMBA, VADAKANCHERY.P.O, ALATHUR-678683. ADDL.A3 ROY JOSEPH, S/o LATE JOSEPH, AGED 45, PUTHENVEETIL HOUSE, ARUNOOTTIMANGALAM.P.O, PALAKKAD-678682 ADDL.A4 JOJO JOSEPH, AGED 41, S/o LATE JOSEPH, PUTHENVEETIL HOUSE, KOONAMAVU.P.O, ERNAULAM DISTRICT,PIN-683518 (LRs OF DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER THE ORDER DATED 19.07.2021 IN IA 1/2021) BY ADVS. N.SUKUMARAN (SR.) S.SHYAM N.K.KARNIS V.K.BALACHANDRAN SAJI VARGHESE KAKKATTUMATTATHIL LATHEESH SEBASTIAN G.BENO KIRAN PETER KURIAKOSE VINAY KUMAR VARMA ## RESPONDENTS/PLAINTIFF AND 1st DEFENDANT: 1 P.RASHEED, S/o IMBICHI BAVA, RESIDING AT HOUSE NO.4, T.B. COMPLEX, SINGAN PALAYAM, MAHADAPURAM, BANGALORE-560 048. RFA No.377 of 2008 2 2 VALIYAPLAKATH ALIKOYA, S/o IMBICHAMU, HOUSE NO.12/730, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. R1 BY ADVS. SRI.ASHWIN SATHYANATH SMT.MEENA.A. SRI.VINOD RAVINDRANATH R2 BY ADV. SRI.K.M.FIROZ THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA No.377 of 2008 3 ## **JUDGMENT** The second defendant came up in appeal against the decree granted by the trial court declaring the title of plaintiff over the property and also granting recovery of possession with arrears of rent. Originally, the property belonged to one Mariyumma who sold the property under Ext.A1 of the year 1991 for valuable consideration to one P.P.Alikoya (PW1), who, in turn, rented out the building and the property appurtenant thereto, to one Valiyaplakath Alikoya, the first defendant, on 03.08.1991 under Ext.A2. The first defendant permitted the second defendant to occupy the property based on Ext.A7 licence deed. While so, the PW1, P.P.Alikoya, who obtained the property under Ext.A1 from Mariyumma assigned the property in favour of Gopalakrishna Kurup under Ext.A3. Gopalakrishnan Kurup, in turn, conveyed the property to the plaintiff under Ext.A4. Thereby the plaintiff became the absolute title holder of the property, based on which the trial court decreed the RFA No.377 of 2008 4 suit declaring the title of the plaintiff and granting recovery of possession with mesne profit (wrongly stated as arrears of rent by the trial court) against the first and second defendants. Aggrieved by the said decree and judgment, the second defendant came up in appeal. 2. The impugned decree and judgment mainly assailed by the second defendant on the ground that by virtue of the non obstante clause incorporated under Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the 'BRC Act'), the civil court is ousted from exercising its jurisdiction in the matter of eviction of tenant and that the civil court cannot pass a decree which cannot be enforced. He had gone upto the extent of submitting that the decree would stand a nullity in the eye of law in view of the non obstante clause incorporated under Section 11(1) of the BRC Act. The decisions rendered by the Apex Court in **East India Corporation Ltd v. Shree Meenakshi Mills Ltd [AIR 1991 SC 1094], Subbiah v. Parvathy Ammal [2020 4 CTC 194], Sushil Kumar Metha v. Gobind Ram Bohra [1990 SCC (1) 193], Abdulla Bin Ali and Ors. v.** RFA No.377 of 2008 5 **Galappa and Ors [AIR 1985 SC 577]** and a Full Bench decision of this court in **Kuruvilla Abraham v. John [1995 (1) KLT 161 (FB)]** were relied on in support of the arguments. 3. Even going by the pleading raised by the plaintiff, what is advanced is a lease arrangement between the plaintiff and the first defendant. The first defendant, in turn, expressed his willingness to surrender possession of the property and filed a written statement in that behalf. According to the plaintiff, the second defendant came into the possession of the property based on Ext.A7 licence deed. But, the second defendant in his written statement took a different stand and claimed an independent possession over the property not under the first defendant and also claimed title based on an earlier agreement for sale by Mariyumma, Ext.B1, with his brother James. It is alleged that by virtue of Ext.B1 agreement for sale and for and on behalf of his brother James, he had taken possession and had done something in furtherance of the contract for sale over the property. It is submitted that, he is holding the property by virtue of part performance of the RFA No.377 of 2008 6 contract for sale for and on behalf of his brother, who had entered into a contract for sale with the original owner Mariyumma. The legal impact of Section 53A of the Transfer of Property Act had been taken into consideration by this court on an earlier occasion in **Mathew Varghese v. Krishnan** **[2020 (1) KLT 643]** and found that the section is incomplete in its nature and that defect was not cured even after the amendment in the year 2001. Even otherwise, the second defendant cannot claim the benefit under Section 53A of the Transfer of Property Act, firstly on the ground that he is not a party to the alleged contract for sale. His claim is that his brother had entered into a contract for sale, for which admittedly he had not raised any claim over the property by instituting a suit or a suit for specific performance, in spite of lapse of several years and no such case was advanced. Secondly on the reason that it is up to the brother of second defendant, who can raise any claim based on the alleged contract for sale. On the other hand, what is claimed by the second defendant is the absolute right and title over the property, without any document of acquisition of right. When the second defendant claims RFA No.377 of 2008 7 independent possession based on part performance of the contract for and on behalf of his brother James, he cannot be permitted to argue that the plaintiff has to initiate the proceedings under the Rent Control Act and he would stand estopped from raising such a contention, especially when he claims possession over the property not under a lease arrangement or tenancy under the first defendant or otherwise. The non obstante clause incorporated under Section 11(1) would come into play only with respect to eviction of a tenant. Hence, there is no merit in the abovesaid contention. 4. It is further submitted by the learned counsel for the appellant that what is granted against the second defendant by the trial court is a decree for recovery of rent against first and second defendants, though the second defendant will not come under the purview of tenant or sub tenant as claimed by the plaintiff. Necessarily, the decree has to be understood in reference to the occupation of property by the second defendant for which he has to pay mesne profit for possession and occupation at least at the RFA No.377 of 2008 8 rate of rent payable. Hence, the appeal fails. The decree and judgment of the trial court deserves no interference. Appeal is dismissed. No costs. Sd/- ## **P.SOMARAJAN** **JUDGE** DMR/-