MOOLAYIL RAJAN Vs. MATHONKANDIYIL PREMAN

JUDGEMENT

(1.) M.R.ANITHA, J 1.This Regular Second Appeal has been directed against the judgment and decree in A.S.No.4/2015 on the file of Subordinate Judge's Court, Vatakara which arise out of the judgment and decree in O.S.No.42/2013 on the file of Munsiff's Court, Vatakara.

(2.) Appellant is the defendant in the suit. Parties would be referred as per their status before the trial court. The suit has been filed for recovery of possession and realisation of arrears of rent. Plaint schedule property originally belonged to the defendant and the plaintiff purchased it from the defendant as per Assignment Deed No.1742 of 2003 dtd. 8/8/2001. Subsequently, plaintiff constructed a shed in the plaint schedule property and it was taken on lease by the defendant for conducting cement pottery manufacturing unit on a monthly rent of Rs.700.00 as per lease deed executed on 3/6/2003. Defendant committed default in payment of rent from 1/5/2004. Inspite of repeated demands, the arrears were not cleared. Plaintiff required the plaint schedule property for constructing a house. Hence plaintiff filed R.C.P.No.39/2011 for eviction on the ground of arrears of rent. In that petition, defendant denied the title of the plaintiff. Thereafter the suit has been filed. Plaintiff executed power of attorney in favour of the wife to look after and manage the plaint schedule property and the suit has been filed by the power of attorney for and on behalf of the plaintiff. It is alleged that the plaintiff has no house or other land of his own at Vatakara town and village and they have no land to construct a new house other than the plaint schedule property and hence they bona fide need the shed described in the plaint schedule property for construction of new house after demolishing the shed. Defendant is not depending on the income derived from the business carried on in the plaint schedule shed and it not his main source of income. He has another shed in his possession which is sufficient for this purpose and there are also other buildings and sheds available in the locality for shifting the business. So, lawyer notice was issued on 7/2/2011 seeking surrender of vacant possession of the building. For that, reply was sent raising frivolous contentions.

(3.) Defendant filed written statement as well as additional written statement denying the landlord-tenant relationship as well as the title of the plaintiff in the plaint schedule property. The document produced as kai chit is a fraudulent document and execution of the same is stoutly denied. He never paid any rent to the plaintiff. The plaint schedule property and the remaining properties belongs to the defendant. The shed was constructed by the defendant. The plaintiff is the brother-in-law of the defendant. He borrowed an amount of Rs.95,000.00 from the plaintiff in May 2001 in two instalments. Since he could not repay the amount, only as a security Document No.1742/2001 was executed. No title has been derived to the plaintiff as per the said document. Defendant sold a family property for the purpose of repayment of the loan due to the plaintiff and since the plaintiff was not amenable, representation was made to political parties and it is at that time notice was issued by the power of attorney of the plaintiff. The land in question is not suitable for constructing a residential building. Reply notice was sent stating true facts. Plaintiff was never in possession of the plaint schedule property.