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P. SIVADASAN, S/O.NARAYANA MENON versus KASSIM, S/O. RAYIN KUNJIMANAKATH MUHAMED

High Court of Kerala

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P. SIVADASAN, S/O.NARAYANA MENON v. KASSIM, S/O. RAYIN KUNJIMANAKATH MUHAMED - RSA No. 513 of 2007(C) [2007] RD-KL 12191 (5 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 513 of 2007(C)

1. P. SIVADASAN, S/O.NARAYANA MENON,
... Petitioner

Vs

1. KASSIM, S/O. RAYIN KUNJIMANAKATH MUHAMED
... Respondent

For Petitioner :SRI.SANTHEEP ANKARATH

For Respondent :SMT.PRABHA R.MENON

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :05/07/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... R.S.A.No.513 OF 2007 ............................................

DATED THIS THE 5th DAY OF JULY, 2007



JUDGMENT

Defendant in O.S.488 of 1997 on the file of Munsiff Court, Ottapalam is the appellant. Plaintiff is the respondent. Plaintiff instituted the suit seeking a decree for mandatory injunction contending that appellant is a licensee of the plaint schedule building and under Ext.A3 license deed he has to pay a monthly license fee of Rs.650/- and he defaulted to pay the same and in spite of notice he did not pay or vacate the premises and therefore respondent is entitled to a decree for mandatory injunction directing respondent to vacate the building. Appellant filed a written statement contending that he is not a licensee but a lessee and he obtained the building on rent originally on 9.7.1990 for a monthly rent of Rs.400/- and the lease was being extended from time to time and as he is a tenant entitled to the benefit of Kerala Buildin(Lease and Rent Control) Act, hereinafter referred to as the `Act' he cannot be evicted otherwise than as provided under the Act and therefore respondent is not entitled to the decree sought for.

2. Learned Munsiff on the evidence of PW1, DW1 and RSA 513/2007 2 Ext.A1 and Ext.B1 to B3 rejected the case of appellant that he is a lesseee, holding that Ext.A3 is a license deed and granted a decree in favour of respondent. Appellant challenged the decree and judgment before Sub Court, Ottapalam in A.S.54 of 1999. Learned Sub Judge on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

3. Learned counsel appearing for appellant was heard. The argument of learned counsel relying on the decision of the Apex Court in Beena V. Ramachandra Rao(2004(2)KLT 336) was that though Ext.A3 is styled as a license it was executed to deny the benefit of the provisions of the Act to appellant and the intention of the parties was only to create a lease and not a license and therefore appellant is entitled to the benefit of Kerala Act 2 of 1965 and courts below did not properly appreciate Ext.A3 and hence the decree and judgment are not sustainable.

4. On hearing learned counsel appearing for appellant, I do not find any substantial question of law involved in the appeal. Though the argument of learned counsel appearing for appellant was that courts below decided the case relying only on the style RSA 513/2007 3 and nomenclature used in Ext.A3, the judgment does not support the argument. Ext.A3 specifically provides that appellant is entitled to use the building only for the purpose of running medical shop. Courts below, on appreciating that fact found that if what was created was a lease, there would not have been a restriction to use the building only for running a medical shop. Analysing other circumstances, it was held that the relationship created under Ext.A3 is only that of a licensee and respondent is entitled to the decree sought for. On the facts and circumstances of the case, no interference is warranted. No substantial question of law is involved in the appeal. RSA is dismissed in limine.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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