PULLUVANTHUDIL DAMODRAN v. MADAKATH MADHAVI and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **SA.No. 958 of 1996** **AGAINST THE DECREE AND JUDGMENT DATED 15-09-1995 IN AS 32/1993 of DISTRICT COURT, KASARAGOD** **AGAINST THE DECREE AND JUDGMENT DATED 28.11.1992 IN OS 10/1987 of SUB COURT, HOSDURG** ## **APPELLANT/1ST RESPONDENT/2ND DEFENDANT:** **1 * PULLUVANTHUDIL DAMODRAN, S/O.KUNHIMANICKOM, CULTIVATOR, RESIDING AT KAYYUR VILLAGE OF HOSDURG TALUK, POST-KAYYUR. (DIED)** **ADDL.A2 THEYALE VEETIL JANAKI, AGED 54 YEARS** **W/O.LATE P.DAMODARAN, R/AT KUKKOTHU VEEDU, KAYYUR VILLAGE, KAYYUR P.O., KASARGOD DISTRICT.** **ADDL.A3 THAYALE VEETIL SAJEESH,** **S/O.LATE P.DAMODARAN, R/AT KUKKOTTU VEEDU, KAYYUR VILLAGE, KAYYUR P.O., KASARGOD DISTRICT.** **ADDL.A4 THAYALE VEETTIL RAJEESH,** **S/O.LATE P.DAMODARAN, R/AT KUKKOTTU VEEDU, KAYYUR VILLAGE, KAYYUR P.O., KASARAGOD DISTRICT.** **ADDL.A5 SNIJI T.V.,** **D/O.LATE P.DAMODARAN, R/AT KUKKOTTU VEEDU, KAYYUR VILLAGE, KAYYUR P.O., KASARAGOD DISTRICT.** *** LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 5 AS PER ORDER DATED 24/1/2014 IN IA 3100/2013.** ## **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENTS/APPELLANTS AND RESPONDENTS 2 TO 5/PLAINTIFF:** **1 MADAKATH MADHAVI, D/O. LATE KAIVILIKKAL KORAN AND WIFE OF T.KUNHAMBU, AGRICULTURIST, R/AT CHERUVATHUR VILLAGE OF HOSDURG THALUK, P.O., CHERUVATHUR.** SA.No. 958 of 1996 2 - **2 MADAKATH NARAYANI, D/O.LATE KAIVILIKKAL KORAN AND W/O.P.P.KUNHAMBU, AGRICULTURIST, R/IN PILICODE, VILLAGE OF HOSDURG THALUK, P.O. PILICODE.** - **X 3 VAIKATH LAXMI, D/O.VELLACHIAMMA, R/IN NILEASWAR VILLAGE OF HOSDURG THALUK POST NILESHWAR. (DELETED)** - **X 4 M.M.NAIR, INSPECTOR, E RTC CRPF, AVADI, MADRAS - 66. (DELETED)** - **X 5 MANOJ KUMAR T.R., AGED 15 YEARS. (DELETED)** - **X 6 MANJU T.R., AGED 13 YEARS. (DELETED)** - **(MINORS REPRESENTED BY THEIR GUARDIAN 4TH RESPONDENT RESIDING - DO- -DO-** **X RESPONDENTS 3, 4, 5 AND 6 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 23/1/2008 ON IA 155/2008.** **BY ADV. SRI.M.SASINDRAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.No. 958 of 1996 3 ## **JUDGMENT** The second defendant in the suit is the appellant. The suit was one for recovery of possession of a building. The suit building is one situated in an item of property measuring 22 cents. The said property belonged in Jenm to one Mannampuramkavu Devaswom and was in the possession of the Tarwad of one Krishna Pidarar on a Moolageni arrangement. It is alleged by the plaintiffs that Krishna Pidarar conveyed the said 22 cents of property to the father of the plaintiffs, Koran in terms of Ext.A1 document. Koran died on 28.01.1977. It is also alleged by the plaintiffs that they obtained the property covered by Ext.A1 document in terms of Ext.A2 will executed by Koran. The case set out by the plaintiffs in the plaint is that there was an old building in the property; that Koran demolished the said building and put up the suit building in its place; that Koran had let out the suit building to the first defendant in terms of Ext.A5 rent bond; that the first defendant sub-let the suit building to the second defendant; that the proceedings instituted by the plaintiffs before the Rent Control Court for eviction of defendants 1 and 2 on the ground of sub lease was dismissed relegating the parties to the SA.No. 958 of 1996 4 civil court holding that the denial of the title of the plaintiffs by the second defendant is bona fide; that the second defendant has no manner of rights in the suit building; that the second defendant has executed a document purporting to transfer the suit building to the third defendant; that the document executed by the second defendant in this connection would not bind the plaintiffs nor the suit building and that the plaintiffs are, therefore, entitled to recover possession of the suit building from defendants 1 to 3. 2. The first defendant filed a written statement in the suit stating, among others, that she took the suit building on lease from the second defendant on 18.04.1976 in terms of Ext.B6 rent bond; that Ext.A5 rent bond is one obtained by the plaintiffs from her under misrepresentation, coercion, undue influence etc and that she has surrendered the suit building to the second defendant on 27.07.1977. The second defendant contested the suit contending that the property where the suit building is situated belongs to him. According to him, in terms of a registered document executed in the year 1940, the properties held by the Tarwad of Krishna Pidarar were settled in favour of the members of Tarwad and Krishna Pidarar obtained title to the SA.No. 958 of 1996 5 property where the suit building is situated in terms of the said document. It was contended by the second defendant that on the death of Krishna Pidarar, the said property devolved on his sons and they assigned the same to one Illath Valappil Ambunhi. It was also contended by the second defendant that Illath Valappil Ambunhi later assigned the property to Kaivelikkal Kunhipatta in terms of Ext.B2 assignment deed and Kaivelikkal Kunhipatta, in turn, assigned the property to the second defendant in terms of Ext.B1 assignment deed. The third defendant supported the case set out by the second defendant. 3. The trial court found that the suit as framed is not maintainable and consequently dismissed the suit. The view taken by the trial court was that since a cloud is cast on the title of the plaintiffs over the suit building, they should have sued for declaration of their title over the same. The plaintiffs took up the matter in appeal. The appellate court reversed the finding rendered by the trial court as regards the maintainability of the suit and decreed the suit holding that the suit building is one covered by Exts. A1 and A2 documents relied on by the plaintiffs. The second defendant is aggrieved by the decision of the appellate court and hence this second appeal. SA.No. 958 of 1996 6 4. Heard the learned counsel for the appellant as also the learned counsel for the contesting respondents/ the plaintiffs. 5. The learned counsel for the appellant contended that as found by the trial court, a cloud is cast on the title of the plaintiffs over the suit building and that therefore, the plaintiffs should have sued for declaration of their title over the suit building as well in the suit. According to the learned counsel, in so far as the plaintiffs have not claimed in the suit a decree for declaration of their title over the suit building, the suit is not maintainable. The learned counsel also contended that, at any rate, in so far as the specific case pleaded by the plaintiffs in the plaint is that the first defendant is the tenant of the suit building inducted by their predecessor and the second defendant is the sub tenant inducted by the first defendant, in the absence of a prayer for a declaration of the title of the plaintiffs over the suit building, the questions arose for consideration were only as to whether a landlord-tenant relationship exists between the plaintiffs and the first defendant and also whether the second defendant is a sub-tenant inducted by the first defendant. It was pointed out by the counsel that if the court had found that the SA.No. 958 of 1996 7 first defendant is a tenant inducted by Koran in the suit building, necessarily, the court should have considered the question whether the plaintiffs are entitled to evict defendants 1 and 2 on that basis in terms of the provisions contained in the Kerala Buildings (Lease and Rent Control) Act, 1965. It was pointed out by the learned counsel that in so far as the said course was not adopted by the appellate court, its decision is liable to be interfered with. It was also pointed out by the learned counsel that in a case of this nature, it was unnecessary for the court to undertake an adjudication as to the title of the parties to the suit building and the property where the same is situated, as done by the appellate court in the absence of a prayer for declaration of the title of the plaintiffs over the suit building. It was also contended by the learned counsel that at any rate, in the absence of a prayer for declaration of title of the plaintiffs over the suit building, the finding rendered by the appellate court on the issue relating to the rival title set up by the parties cannot be said to be one rendered after affording the parties an opportunity of hearing and the said finding is liable to be interfered with therefore, on that ground. 6. Per contra, the learned counsel for the SA.No. 958 of 1996 8 respondents contended that it was unnecessary for the plaintiffs in a suit of the instant nature to seek a decree for declaration of their title over the suit building. It was also contended by the learned counsel, placing reliance on the decision of this Court in **Jacob John** v. **Dr.John P.Mathai** [2013 (4) KHC 274] that only in cases where the defendant in the suit admits the landlord-tenant relationship with the plaintiff and in cases where the court finds landlord-tenant relationship between the parties, it is obligatory for the court to go into the entitlement of the plaintiff to seek eviction of the defendant from the building, in terms of the Kerala Buildings (Lease and Rent Control) Act. In all other cases, it was contended by the learned counsel that, if the court finds title with the plaintiff, a decree can be passed. It was also contended by the learned counsel that the essential dispute between the parties in the instant case was as to whether the suit building is situated in the property covered by Exts.A1 and A2 documents as claimed by the plaintiffs or as to whether the suit building is situated in the property covered by Exts.B1 and B2 documents as claimed by the contesting defendants. It was submitted that the said question has been answered by the appellate court in favour of the plaintiffs and it is on that basis that the impugned decision SA.No. 958 of 1996 9 is rendered. According to the learned counsel, there is, therefore, no infirmity in the decision impugned in the appeal. 7. Having heard the learned counsel for the parties on either side, the following substantial question of law has been formulated for decision in the second appeal: “Was the appellate court justified in reversing the decision of the trial court on an adjudication of the issue relating to the rival title set up by the parties in the absence of a prayer for declaration of title in the suit?” 8. The specific case pleaded by the plaintiffs in paragraph 7 of the plaint is that the first defendant is the tenant of the suit building inducted by Koran and that the first defendant has executed Ext.A5 rent bond in favour of the plaintiffs on 15.07.1977, after the death of Koran. In paragraph 8 of the plaint, the case pleaded by the plaintiffs is that the first defendant has inducted the second defendant in the suit building, contrary to the terms of the rent bond. It is on the aforesaid pleadings that the plaintiffs sought a decree for recovery of possession of the suit building from the defendants. The defendants disputed the pleadings made by the plaintiffs in paragraphs 7 and 8 of the plaint. As such, as rightly pointed out by the learned counsel for the appellant that the issues arising for consideration are whether there exists a landlord-tenant SA.No. 958 of 1996 10 relationship between the plaintiffs and the first defendant and also whether the second defendant is a sub-tenant inducted in the suit building by the first defendant. As pointed out by the learned counsel, if the court had found the aforesaid issues in favour of the plaintiffs, necessarily, the issue whether the plaintiffs are entitled to evict the defendants from the suit building in terms of the provisions of the Kerala Buildings (Lease and Rent Control) Act would also arise for consideration. Strangely, it is seen that none of those issues are framed for trial in the suit. Instead, both the trial court as also the appellate court proceeded as if it is a suit for recovery of possession of the suit building based on title. Even though there was no prayer for declaration of title, an issue as to the title of the plaintiffs over the suit building was also framed. It is on the said issue, the court found that the suit as framed is not maintainable. As revealed from the pleadings of the parties, it is a case where the plaintiffs and the second defendant have set up rival title to the suit building and the property where the suit building is situated. As a cloud is raised over the plaintiffs' title, on the basis of which the decree is sought in the suit, I have no doubt that the plaintiffs should have claimed a decree for declaration of their title to the SA.No. 958 of 1996 11 suit building as well. The plaintiffs in a case of this nature are entitled to sue for recovery of possession only in cases where their title is not disputed [See **Anathula Sudhakar v. P.Buchi** **Reddy (Dead) by Lrs.** (2008)4 SCC 594)]. As noted, the plaintiffs in the present case have not claimed a decree for declaration of their title to the suit building. The question, therefore, is as to whether the appellate court was justified in undertaking an adjudication as to the issue relating to the rival title set up by the parties. As noted, though there was no prayer for declaration of title, the trial court formulated an issue relating to the rival title set up by the parties as “whether the plaintiffs have title”. Even though there was no prayer for declaration of title in the suit, in so far as there was an issue relating to the rival title set up by the parties and the parties were permitted to let in evidence on the said issue, according to me, the appellate court cannot be found fault with for having reversed the decision of the trial court and decreed the suit on an adjudication of the issue relating to the rival title set up by the parties. As explained by this court in **Jacob John** _(supra)_ , the parties have not admitted the landlord-tenant relationship nor the courts below found such a relationship between the parties. In the circumstances, it was SA.No. 958 of 1996 12 unnecessary for the appellate court to decide the entitlement, if any, of the plaintiffs for eviction of the second defendant in terms of the Kerala Buildings (Lease and Rent Control) Act. The question is answered accordingly. There is no merit in the second appeal and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR** **SKS** **JUDGE**