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KOOTATHIL RASHEED, S/O. MOIDU versus KUNNUMMAL BIYYATHU, D/O. SOOPPY

High Court of Kerala

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KOOTATHIL RASHEED, S/O. MOIDU v. KUNNUMMAL BIYYATHU, D/O. SOOPPY - RSA No. 543 of 2007 [2007] RD-KL 13907 (24 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 543 of 2007()

1. KOOTATHIL RASHEED, S/O. MOIDU,
... Petitioner

Vs

1. KUNNUMMAL BIYYATHU, D/O. SOOPPY,
... Respondent

2. KUNNUMMAL KUNHAMMAD,

3. KUNNUMMAL KUNHABDULLA,

For Petitioner :SRI.K.JAYAKUMAR

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :24/07/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... R.S.A.No. 543 OF 2007 ............................................

DATED THIS THE 24th DAY OF JULY, 2007



JUDGMENT

Plaintiff in O.S.69 of 2003 on the file of Munsiff Court, Nadapuram is the appellant. Defendants are respondents. Appellant instituted the suit seeking decree for recovery of possession on the strength of tenancy right in respect of two shop rooms bearing Door No. K.P. II/30 and K.P. II/31 which admittedly belong to respondents. The case of appellant was that he obtained the first room as per a lease arrangement evidenced by Ext.A2 dated 7.1.1989 on a monthly rent of Rs.300/- and subsequently rent was enhanced to Rs.600/- and item No.2 of the property was also taken for expanding the business and he has been continuing in possession of the property and while so he was illegally dispossessed by respondents on 20.3.2003. It was contended that tenancy right subsists and so he is entitled to a decree for recovery of possession of the tenanted premises. It was contended that he could be evicted only by due process of law and as tenancy is subsisting and possession was forcibly taken, he is entitled to get the decree for recovery of possession. Respondents filed a RSA 543/2007 2 written statement disputing the plaint allegations and contending that appellant was never a tenant of Building No.KP II/30 and though he was a tenant of Building No. KP II/31 as per a lease arrangement of 1977 due to loss of business appellant had surrendered possession of the building and handed over the key to respondents and thereafter the building was rented out to one Preman and he has been conducting electricl shop therein and appellant has no tenancy right subsisting over the buildings and therefore he is not entitled to the decree for recovery of possession.

2. Learned Munsiff, on the evidence of Pws 1 and 2, DW1 and Exts.A1 and A2, Exts.B1 to B3, Exts.C1 and X1 dismissed the suit holding that appellant did not establish his tenancy right in respect of Building No.KP II/30 at all and the original tenancy right in respect of Building No. KP II/31 was surrendered earlier and therefore he had no subsisting tenancy right and dismissed the suit. Appellant challenged the decree and judgment before Additional District Court, Vadakara in A.S.110 of 2003. Learned Additional District Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. RSA 543/2007 3

3. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that first appellate court though correctly stated the law, wrongly cast the burden on the appellant and as the respondents admitted the tenancy right in respect of Building No.KPII/31 and no evidence was adduced to prove that there was a legally valid surrender of the tenancy right, courts below should have found that appellant continued to be the tenant of that room and if that be so, courts below should have granted the decree. Learned counsel also argued that courts below did not appreciate the evidence properly with respect to the building K.P. II/31 and on the evidence it should have been found that appellant established the subsisting tenancy right and therefore he should have been granted a decree at least to that portion of the property.

4. On hearing learned counsel and going through the judgments of the courts below, I do not find any substantial question of law involved in the appeal. Appellant contended that item Building No.KP II/31 No.1 was originally obtained under Ext.A2 rent Kacheet and subsequently when his business developed Building KP II/30 was also obtained and enhanced rent was paid and he continued to be in possession of the two RSA 543/2007 4 rooms till possession was forcibly taken on 20.3.2003. As far as Building KP II/30 is concerned, respondents denied the very tenancy claimed by appellants. The trial court and first appellate court on appreciating the evidence, found that there is absolutely no evidence to prove that appellant was a tenant of the said room at any point of time and therefore appellant is not entitled to get a decree in respect of that property. As far as Building No.KP II/31 is concerned, courts below found that Ext.A2 rent deed is not genuine and under Ext.A2 appellant did not obtain the plaint schedule property. These factual findings cannot be interfered in exercise of the powers of this court under Section 100 of Code of Civil Procedure. The argument of learned counsel appearing for appellant is that as defendants admitted that appellant was once a tenant of that building and their case was that the tenancy was surrendered and as there is no acceptable evidence to prove the surrender, courts below should have upheld the tenancy right as he was not legally evicted. It is true that respondents admitted that there was a tenancy arrangement between appellant and respondents in respect of Building KP II/31 earlier. But that is not under Ext.A2. It was also contended by respondents that after the business was found RSA 543/2007 5 to be a failure appellant surrendered that building and handed over the key and since then appellant was not continuing as a tenant. The trial court on the evidence of Pws 1 and 2 and DW1 found that there was in fact a surrender as claimed by defendants and the tenancy did not continue after 1999. The first appellate court on reappreciation of evidence, confirmed that finding. That factual finding cannot be interfered by reappreciating the evidence in exercise of powers of this court. The factual finding of first appellate court is final. If that be so, appellant is not entitled to the decree sought for. No substantial question of law is involved in the appeal. Appeal 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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