P. M. PARTHAKUMAR Vs. AJITH VISWANATH

JUDGEMENT

(1.) The first defendant came up in appeal against the decree of declaration of title and recovery of possession in O.S.No.651/2010 of Sub Court, Kozhikode. The dispute is pertaining to a portion of property obtained by Sivanathan under Ext.A1 assignment deed dtd. 03/06/1954. At that time, he was a minor. His father P.M.Kutty died on 13/10/1987 and mother Devayani on 21/7/1986. During the life time of father, they were doing a partnership business in the name and style of 'P.M KUTTY AND SONS' based on Ext.A9 partnership deed dtd. 1/4/1971 including the business by name 'VICTORY AUTOMOBILES AND SERVICE STATION' in Kozhikode town. The plaint 'A' schedule having an extent of 71 cents was purchased in the name of Sivanathan represented through his mother Devayani under Ext.A1 assignment deed dtd. 3/6/1954. Various other items were also purchased in the name of his siblings, who were minors at that time. On the death of father, the partnership was dissolved under Ext.A11 on 31/3/1988. On the very same day, they made an internal arrangement, Ext.A12, by which the various business conducted by the partnership firm were separated. The business by name 'P.M.Kutty Stationery Merchant' in building No.13/813 of Kozhikode Corporation was exclusively given to Sivanathan. The ownership of business run in the plaint 'B' and 'C' schedule properties, which are part of 71 cents obtained by Sivanathan was exclusively allotted to the first defendant. While so, the plaint 'B' schedule property having an extent of 6.75 cents was purchased by the second defendant Venugopalan from the abovesaid Sivanathan under Ext.A18 registered assignment deed dtd. 20/1/1995. According to the second defendant, after the assignment the rent portion was divided proportionately at Rs.2,000.00 per month and a demand notice was also issued to the first defendant on 1/4/1995 calling upon him to pay the monthly rent at the said rate. Since it was not paid, a rent control proceeding in RCP No.67/1995 was initiated by the second defendant against the first defendant before the Rent Control Court, Kozhikode for an order of eviction on the ground of arrears of rent under Sec. 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Subsequently, the 'C' schedule property having an extent of 13.75 cents was assigned by Sivanathan to the plaintiffs under Ext.A22 registered assignment deed, dtd. 26/3/1996 and claimed rent against the first defendant at the rate of Rs.6,000.00 by issuing a lawyer notice which has also resulted in the initiation of yet another rent control proceedings- RCP No.166/1996 before the very same Rent Control Court on the ground of arrears of rent. While so, the abovesaid Venugopalan, second defendant, assigned his right over the 'B' schedule property to the plaintiffs under Ext.A29 assignment deed, dtd. 4/3/1997, based on which, it is contended that the plaintiffs became the absolute owners in de jure possession of plaint 'B' and 'C' schedule properties.

(2.) In the rent control proceedings, the respondent, who is the first defendant in the suit, denied landlord/tenant relationship as well as the title of plaintiffs over the property. The Rent Control Court, after hearing both the parties, found the denial of title bonafide and recorded a finding to that effect and dismissed the rent control proceedings. Two appeals - RCA No.25/1998 and 26/1998 were preferred against the said order, wherein a remand was ordered for consideration of additional documents, against which two revisions - C.R.P.Nos.651/2001 and 673/2001 were filed by the first defendant. The issue ultimately came before a Full Bench of this court in Parthakumar vs. Ajith Viswanathan [2006 (2) KLT 250] regarding the jurisdiction available under Sec. 11(1) of the Kerala Buildings (Lease and Rent Control) Act. It is after the conclusion of the revisions, the plaintiffs, the purchaser of the property, filed a suit - O.S.No.651/2010 for declaration of title and for recovery of possession. The trial court, after a prolonged trial, ultimately decreed the suit declaring the title of plaintiffs over the property and passed a decree for recovery of possession with mesne profit, against which the first defendant came up in appeal.

(3.) The right, title and interest claimed by the plaintiffs over the property are put under challenge mainly on the ground that Sivanathan who had executed the deed of transfer was not having any subsisting right over the property and claimed that the sale deed executed is only a sham document on the allegation that the property was acquired by the father of Sivanathan while he was a minor represented through his mother and that the minor is only a binamidar and will not get any right, title or interest over the property, for which relied on the decision of the Apex Court in Controller of Estate Duty, Lucknow v. Aloke Mitra [1981 KHC 536]. Further, it is submitted that the buildings situated in the property was not constructed by Sivanathan and that the maxim quid quid inaedificatur solo solo cedit (the building on a land belongs to the owner of the land)is not applicable in India and there is failure on the part of the trial court to appreciate the said legal position and hence the declaration of title over the immovable property inclusive of the structures therein cannot be sustained. The tenancy claimed by the plaintiffs was also brought under challenge on the ground that the properties - "B and C schedule", wherein the first defendant was conducting his business was the part and stock of partnership business earlier conducted by their father along with his children and after dissolution of partnership and by way of a family settlement, the said property was given to the first defendant. Hence, on that ground also, the title claimed by the plaintiffs over the property is disputed. The decree of recovery of possession granted by the trial court is also challenged on the ground of lack of jurisdiction.