P.M.ARAVINDAN Vs. K.P.UDAYAKUMAR

JUDGEMENT

(1.) This R.S.A. is directed against the judgment and decree in A.S.No.53 of 2016 dated 05.12.2016 on the file of the first Additional District Court, Kozhikode, (hereinafter referred to as 'the first appellate court') confirming the judgment and decree in O.S.No.314/2013 dated 23.12.2015 on the file of the Principal Munsiff's Court-II, Kozhikode (hereinafter referred to as 'the trial court'). The defendant, who was directed to vacate the plaint schedule property by way of a decree for mandatory injunction, was before the first appellate court. The plaintiff before the trial court, who was the respondent before the first appellate court, is the respondent herein. The parties are hereinafter referred to as the plaintiff and defendant according to their status in the trial court unless otherwise stated.

(2.) The plaintiff claims that the plaint schedule property originally belonged to one Choyi @ Damodaran (hereinafter referred to as 'Choyi') from whom he acquired the property as per assignment deed registered as document No.4017/2012 of Chevayur Sub Registry dated 10.12.2012. The defendant was a licensee under Choyi as per agreement dated 30.5.2012, for a monthly license fee of Rs.2,400/-. A sum of Rs.1,25,000/- was received as security deposit. The term of licence expired on 30.4.2013. It was further contended that the licence fee is in arrears from November, 2013. The defendant did not vacate the plaint schedule property after the expiry of the period. Hence, the plaintiff issued a notice calling upon the defendant to vacate the premises. The defendant did not give any reply to the notice. Hence the plaintiff filed the suit on 22.5.2013 for a mandatory injunction directing the defendant to vacate the plaint schedule premises.

(3.) The defendant filed the written statement contending that he was put in possession of the property pursuant to an agreement dated 30.5.2012. It was further contended that he was in possession and enjoyment of the property on the basis of an oral lease between him and Choyi on 01.03.2001 and that he is enjoying the property as a lessee on the basis of the said oral lease. The arrangement was later reduced into an agreement. It was contended that when Choyi required some money, the defendant had advanced a sum of Rs.3,00,000/- to him and an agreement was entered into between the defendant and Choyi on 07.05.2001 whereby he was permitted to retain the plaint schedule property as a tenant till he intends to vacate. The monthly rent was being periodically enhanced. On 30.5.2012, the rent was enhanced to Rs.2,400/- per month and the defendant happened to put his signature in a document brought by Choyi wherein he was made to believe that it was a lease agreement to enhance rent. The defendant executed the agreement believing the words of Choyi in view of the relationship between them. The plaintiff is none other than the nephew of Choyi who is aware of the arrangement between the defendant and Choyi. The arrangement between the defendant and Choyi was always as a tenant and the receipts issued to the defendant by Choyi were towards rent paid. The defendant is conducting stationery business in the plaint schedule property which is his only source of livelihood. There are no other suitable buildings available in the locality for rent. The document allegedly executed in favour of the plaintiff is a sham document which has not come into effect. At any rate the plaintiff, who is an assignee from Choyi, is bound by the terms and conditions of the entrustment entered into between Choyi and the defendant. The rent happened to be in arrears because Choyi did not come to collect the rent. He further contended that the relationship between the parties is as landlord and tenant and therefore the suit for mandatory injunction is not maintainable.