Faced with concurrent findings, the plaintiff in O.S.No.101/2009 before the Munsiff Court, Kozhikode has come up in appeal. The suit was one for declaration of title and recovery of possession.
2. Eschewing unnecessary details, the plaintiff had instituted R.C.P. 176/2004 against the defendants in this case seeking their eviction pointing out that the premises involved in this proceeding was let out to the defendants on rent and they are liable to be evicted. In the said proceedings, the respondents herein disputed the title of the landlord and that denial was found to be bona fide and therefore, plaintiff was relegated to a suit. That is how the suit came to be filed.
3. The defendants resisted the suit by pointing out that the claim that a building was leased to Sreedharan is incorrect. According to them, the property where B schedule building is situated was taken on lease by Sreedharan for constructing a shop room on payment of advance of ₹ 750/-
and on condition that annual rent of ₹ 10/- would be paid.
Structures were put up by Sreedharan and commercial activities were carried on. They therefore claimed the benefit of Section 106 of Kerala Land Reforms Act (hereinafter referred to as 'the KLR Act'). The further contention was that on the death of Damayanthy through whom the plaintiff raised his title, her legal heirs are entered into Ext.B1 agreement for sale with one Oormila for a consideration of ₹ 1,300/- and she was put in possession.
The further contention was that in November 1979, Oormila and other legal heir of Damayanthy agreed to register the property in the name of the first defendant and Ext.B2 agreement dated 30.11.1979 was entered into. The vendee was put in possession of the property. Even though the first defendant insisted that the sale deed to be executed, the vendors put off the execution sale deed under one pretext or another. Contending that they are not liable to be evicted and also pointing out that even if the plaintiff had any manner of right, that was lost by adverse possession and limitation, they prayed for a dismissal of the suit.
4. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of PW1 and the documents marked as Exts. A1 to A14 from the side of the plaintiffs. The defendant had DW1 examined and Exts. B1 to B30 marked.
5. On an appreciation of the evidence in the case, both the courts concurrently found that the plea based on agreement for sale could not succeed and rejected the said plea. Thereby, the title was found in favour of the plaintiff. However, both the courts were of the view that the evidence disclosed that the defendants are entitled to protection under Section 106 of the Kerala Land Reforms Act and holding so, the suit was dismissed. It is the said finding that is assailed in this appeal.
6. At the time of admission of this appeal, the following substantial questions of law were formulated.
“(i) Is not the burden of proving protection of Section 106 of the Land Reforms Act, on the person who seeks such protection?
(ii) On the mat available in the case on hand, can it be held that the respondents are entitled for the protection of Section 106 of the Land Reforms Act with respect to plaint B schedule building?”
7. Sri. P.A. Harish, the learned counsel appearing for the appellant contended that defendants in the suit are precluded from raising the plea based on Section 106 of the Kerala Land Reforms Act for the simple reason that in the rent control proceedings, they had no such contention and their only defence to the plea for eviction was that on the basis of an agreement for sale, the first defendant came to be in possession of the property and therefore he could not be evicted and subsequent passage of time, prevented the plaintiff from seeking eviction from the suit property. The learned counsel also went on to point out that having taken up such a contention, defendants could not have claimed protection under Section 106 of the KLR Act for the simple reason that if they pleaded commercial lease under Section 106 of the KLR Act, they had to necessarily admit the title of the landlord. The conscious choice was then made by defendants and they chose to stand by the first contention. That was accepted and the plaintiff was directed to file a suit.
8. Apart from the above fact, according to the learned counsel, the written statement except for a very vague plea of commercial lease, contains no details whatsoever so as to attract Section 106 of KLR Act and the courts below have solely relied on a stray sentence in the evidence of PW1 to the effect that in 1963, the jama of the building stood in the name of Sreedharan, went on to hold that the defendants are entitled to protection under Section 106 of the KLR Act. Relying on the decision reported in Chandy Varghese v. Abdul Khader [2003 (3) KLT 553], the learned counsel contended that it is by now well settled that the burden of proof to show that a person is entitled to the benefit of Section 106 of KLR Act lies on that person. It is for him to adduce sufficient evidence in that regard and establish all the necessary ingredients to attract the said provision. Even though, it is claimed that there are documents between 1963 till 1978 to show that Sreedharan had put up structure and subsequently it was reconstructed, no documents whatsoever was produced by the defendants to establish their claim. It is significant to notice, according to the learned counsel, that the claim is one of oral lease and none has been examined to prove that also.
9. The learned counsel then went on to point out that the answers given by DW1 in cross examination wherein he in no less terms admits that his defence is solely based on the agreement for sale by which he was put in possession of the property and nothing else. He does not rely on the vague plea of commercial lease raised in the written statement. In the absence of any evidence in that regard coupled with the fact that DW1 does not claim benefit under Section 106 of KLR Act, the courts below have grossly erred in law in conferring him with the benefit on permanent tenancy. Accordingly, it is contended that the judgment and decree of the courts below cannot stand.
10. Sri. Kunhi Krishnan Potti, the learned counsel appearing for the contesting respondents on the other hand contended that both the courts below have analyzed the evidence in considerable detail and have come to the conclusion that the defendants are entitled to the benefit of Section 106 of KLR Act and that is essentially the finding on facts. Drawing attention to the evidence of PW1, it was contended that he in no less terms admitted that the Jama of the building in 1963 stood in the name of Sreedharan which fortifies the claim made by the defendants that Damayanthy, the predecessor-in-interest of the plaintiff had given the property on oral lease. The defendants have produced a number of documents subsequently to show that they had put up the structures and were carrying on business therein. Since it is not shown that the findings are either perverse or contrary to the evidence on record, the learned counsel went on to contend that no grounds are made to interfere with the findings of the courts below and that the appeal is liable to be dismissed.
11. The issue regarding the title to the property which was found in favour of the plaintiff rejecting the plea based on the agreement for sale is not assailed before this Court. In this Court, the argument from both sides remained confined to the benefit available under Section 106 of KLR Act which reads as follows:
“106. Special provisions relating to leases for commercial or industrial purposes.-- (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased far commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rend shall be liable to be varied every twelve years.
.........................
(3) Nothing contained in sub-section (1), sub-section (1A) and sub-section (2) shall apply to lands owned or held by the Government of Kerala or a local authority.”
12. A reading of the above provision leaves one in no doubt that the lease of the land must be for commercial or industrial purposes and the lessee acting on that basis must have put up structures before the date mentioned in the provision. If he succeeds in establishing those ingredients, he is protected from being evicted. But he is under the liability to pay the rent which is revisable every 12 years.
13. There may be some substance in the contentions raised by the learned counsel for the appellant that the plea based on Section 106 of the KLR Act may not be available to the respondents. As rightly pointed out by the learned counsel for the appellant in the rent control proceedings, the title of the landlord was denied on the ground that on the basis of agreement for sale, the first defendant had been put in possession and he no longer was a tenant and if at all the landlord had any title, that was lost by adverse possession and limitation. It was this plea raised by the respondents in the rent control petition which found fervor with rent control court. From the records now available, it appears that the plea based on Section 106 of the KLR Act was not raised in the rent control proceedings at all. One must remember that being a respondent in the proceeding, the defendants in the present suit could have taken inconsistent or mutually exclusive pleas. Having failed to do so, the plea may not be available now.
14. Even assuming that the plea is available, the question arises whether the evidence adduced in this case is sufficient to warrant a conclusion that the first defendant is entitled to the benefit of Section 106 of the KLR Act. The ingredients for the establishment of the said right have already been referred to.
15. Both the courts below seem to have been considerably impressed by the fact that PW1 admitted in his evidence that the Jama in respect of the structure shown as B schedule stood in the name of Sreedharan in the year 1963 and that is sufficient to show that it was Sreedharan who had put up the building. That probably is the only evidence in favour of the defendants.
16. The question is whether the above item of evidence is sufficient.
17. Recollecting the defence set up, the definite case is that in the year 1963, Sreedharan took plaint A schedule property on oral lease from Damayanthy and first put up a shed and later a packa structure. The evidence of DW1 is to the effect that there are materials to show that structures were put up with permission and sanction of authorities concerned and also that there are evidence to show that they were occupying premises. However, for reasons best known to the defendants no such evidence has been produced at all.
18. In the decision reported in Chandy Varghese v.
Abdul Khader [2003 (3) KLT 553], it was held as follows:
“Within the purview of the section, are covered only 'leases relating to lands on which after grant of lease, building for industrial or commercial purposes was constructed by he lessee before 20.05.1967. It is held that the other two types of leases viz.,'leases of building' and 'leases of building together with land' are not entitled to protection against eviction under S.106 of the Act. The legal result was that unless it is shown that the subject matter of lease for commercial or industrial purposes was the land alone. S. 106 of the Act would have no application.”
19. One may now refer to the written statement in the case. All that is stated in the written statement is that in the year 1963, property was taken on oral lease for commercial purposes. There is absolutely no whisper regarding putting up of structures before the prescribed date in the statute which is one of the essential ingredients to attract the said provision. Except for very vague and general assertion regarding the right under Section 106 of the KLR Act, there are no ingredients pleaded in the written statement attracting the said provision. However, that may not be of much consequences in the sense that an issue was raised and the parties went to trial fully conscious of the issue. But, this is only to point out the casual manner in which the plea was raised.
20. One may now turn to the evidence of DW1. In cross examination, DW1, in no less terms deposes as follows:
“1963_æÜÏᢠ1979_æÜÏᢠ®d·ßæÎaí dɵÞøÎÞÃí ¾BZ ¥ÈcÞÏ¢ A ÉGßµÏßW ¥ÕµÞÖ¢ ©KÏßAáKÄí Ext.B2 dɵÞø¢ ¦ ØíÅÜJí æµGß¿¢ ©UÄÞÏßøáKßÜïï. Ext.B2 çø¶ÏáIÞAáK µÞÜJí ¥Õßæ¿ æµGß¿¢ §Üï. µÞÜßØíÅÜÎÞÏßøáKá. ÉßKà¿í ¥Õßæ¿ æµGß¿¢ ©IÞAßÏÄí ®æa ¥ºí»ÈÞÃí. ¥ºí»X ÈßVNߺî Éà¿ßµÏÞÃí §çMÞZ ¦ ÉùOßÜáUÄí. Éà¿ßµ ÈßVNßAÞX ¥ºí»Èí çµÞVMçù×ÈßW ÈßKí ÉïÞX µßGßÏßøáKá. ¦ ÉïÞX ¾B{áæ¿ ÉAÜßÜï.”
21. He further says that he has no document in his possession to show that either Sreedharan or anybody else on whose behalf defendants lay claim obtained the property on oral lease. It is here that one has to notice Ext.A11 notice issued by the plaintiff to defendants. The notice specifically mentions that Sreedharan had taken a building on lease from Damayanthy and eviction was sought for in the notice. Ext.A12 is the reply notice. In the reply notice what is highlighted is the agreement for sale on the basis of which claim was made in the rent control petition as well as in the suit also. There is no whisper in Ext.A12 regarding the claim based on Section 106 of the KLR Act.
22. One may again note that even though DW1 says that he has got documents to show the construction of structures in A schedule building, none have been produced. Except for the stray sentence culled out from the evidence of PW1, even going by the evidence of DW1, there is absolutely nothing to show that there was an oral lease in the year 1963 for commercial purposes and also that structures were put up by Sreedharan in pursuance to the said lease arrangement. It is also important to notice at this juncture that there is no evidence of the oral lease.
23. The above aspects have been completely overlooked by the courts below and as already noticed, the admission said to have been made by PW1 is the sole criterion based on which benefit under Section 106 of the KLR Act has put to the first defendant.
24. True, both the courts below have appreciated the evidence on record and have reached a finding based on appreciation of the evidence. It essentially is a finding on facts. But the Apex Court recently had occasion to consider the question as to whether while exercising jurisdiction under Section 100 of C.P.C., interference on finding of facts could be made. After elaborate consideration of the issue, the Apex Court laid down the law that in exceptional circumstances when it is pointed out that there have been misappreciation of the evidence in the case or that the findings entered into by the courts below are perverse, then under Section 100 of C.P.C. this Court will be fully justified in interfering on facts and it is in fact warranted to do justice between the parties.
25. For the above reasons, this appeal is allowed. The finding regarding the benefit of Section 106 of KLR Act in favour of defendants is set aside. It is held that they are not entitled to the benefit under Section 106 of the KLR Act.
26. However, the matter does not end there. Having been relegated to a suit by the Rent Control Board and having found that the plaintiff has title to the suit property and the plaintiff having asserted that the defendants are tenants of the property, going by Section 11(1) of Building Lease and Rent Control Act, eviction can be ordered only on one of the ground under Act 2 of 1965. This issue will have to be necessarily gone into by the trial court.
For the above said purpose, this matter is remanded to the trial court to determine whether the plaintiff has been successful in establishing any one of the grounds for eviction under the Act 2 of 1965. Parties shall appear before the trial court on 10.07.2014. The trial court may make every endeavour to dispose of the matter as expeditiously as possible at any rate within a period of four months from the date of appearance. There will be no order as to costs.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE