PANAMUKKILI SREENIVASAN Vs. KOLAKKAT MUHAMMED ISMAIL

JUDGEMENT

(1.) THE appellant is the defendant in O.S. No. 87 of 1997 on the file of the Court of the Munsiff Magistrate, Ponnani. The Power of Attorney Holder of the 1st plaintiff filed the suit for recovery of possession of the plaint schedule property with item No. 1 shop room and item No. 2 part of the property with profits at the rate of Rs. 350/- per month for the shop room and Rs. 90/- per month for the adjoining property till recovery of possession, profits being claimed as damages for use and occupation. The arrears of profits also were claimed at the same rate. The case of the plaintiffs is that the plaint schedule property belongs to the plaintiffs. The Power of Attorney Holder of the 1st plaintiff granted a licence of the shop room to the defendant on 11-10-1991 pursuant to Ext. A1 licence/agreement. As per Ext. A1, the defendant was permitted to occupy the first item for the purpose of trade by remitting the licence fee of Rs. 250/- per month. The period was two years. The lock and key of the premises were given to the defendant. The current charge shall be paid by the defendant and he shall vacate the premises on the expirty of the licence period. But he had (not) vacated the shop room. He had also not requested the Power of Attorney Holder of the 1st plaintiff for renewing the licence for another period. After the expiry of the period, the Power of Attorney Holder demanded the defendant to vacate the premises for which he was not amenable. The defendant is in unlawful occupation of the first item since 11-10-1992. The defendant has also put up a roof on the eastern side of the first item and has constructed a liento (Chayippu) which is shown as item No. 2. The act of the defendant is illegal. Even though the defendant was asked to remove the unlawful construction and surrender possession of the plaint schedule property, he was not amenable. The defendant has not remitted any amount towards licence fee. The first item would yield a monthly profit of Rs. 350/- and the second item would yield a monthly profit of Rs. 90/-. The defendant is liable to pay the same as profits or as damages for use and occupation to the plaintiffs. Notice was issued demanding surrender of possession of the plaint schedule property. A false reply was sent by the defendant. Hence the suit.

(2.) THE defendant filed a written statement contending that he had not executed any licence deed in favour of the plaintiffs. Even prior to the occupation of the plaint schedule property, he was in occupation of yet another room belonging to the plaintiffs which he had taken on lease on a monthly rent of Rs. 120/- by paying Rs. 10,000/- as advance for the purpose of running a trade of manufacturing bakery items and banana chips. The previous room was under the staircase and the plaintiffs felt that it will be inconvenient to keep possession of the same with the tenant and had demanded to surrender possession of the same. They agreed to let the plaint schedule room to the defendant and in pursuance of the agreement, the previous room was surrendered and the plaint schedule room was taken on rent. Previous advance of Rs. 10,000/- was adjusted as advance to the plaint schedule room. The monthly rent was fixed as Rs. 250/- and he is running the trade of manufacturing and selling of bakery items and banana chips therein. Even on the date of lease, the construction on the east of the building was there and the shop room was rented out along with the liento. The defendant has got licence issued by the Small Scale Industries Department for running the aforesaid trade. While he was keeping possession, the Power of Attorney Holder Fathima wanted the defendant to subscribe his signature on blank stamp papers and making use of the said blank stamp paper Ext. A1 was created. In the concern of the defendant, there are two other workers employed there. If the defendant is asked to surrender the lease hold premises, it will cause irreparable hardship and injury to the defendant. The plaint schedule building is situated in the Ezhuvathiruthy Panchayat wherein the Kerala Building (Lease and Rent Control) Act is made applicable. The intention of the plaintiff to deny the beneficial provisions of the said Act to the defendant. The defendant had remitted rent up to and inclusive of 11-1-1997. The plaintiffs have demanded enhancement of rent for which the defendant was not amenable. Thereafter, the plaintiffs had not accepted the rent from the defendant. Hence the defendant had sent the rent by money order which was refused by the Power of Attorney holder of the 1st plaintiff. The plaintiffs are not entitled to get any relief and the suit is liable to be dismissed.

(3.) THE substantial questions of law formulated in this appeal are :