KRISHNAKUMAR Vs. V. GOPALAKRISHNAN

JUDGEMENT

(1.) The revision petitioner is the 2nd defendant in OS No. 825/07 on the files of the Principal Munsiff's Court, Ernakulam. The 1st respondent herein is the plaintiff in the suit. The suit is filed against the petitioner and the 2nd respondent herein, who is the 1st defendant in the suit. The suit was one for restoration of possession of the plaint schedule building and for permanent prohibitory injunction restraining the defendants from inducting strangers into the plaint schedule building, filed under Section 6 of the Specific Relief Act (for short 'the Act'). The plaint averments in short are as follows (parties are referred to as in the Original Suit): The first defendant is the owner of Plot No. 515 situated in Gandhi Nagar, Ernakulam. She obtained it under the EWS Scheme of the GCDA on 25/11/1980. She executed an agreement with the GCDA agreeing to pay the balance purchase price of the house in 216 monthly instalments of Rs. 52.57 each. After taking possession of the building on 25/11/1980, the building was assessed in the name of the Secretary, GCDA, with No. 38/1144. On 30/11/1980, the plaintiff entered into an agreement with the 1st defendant for letting the building on leave and licence. The agreement was for a period of three years and monthly payment was Rs. 50/-. Rs. 3,500/- was paid as advance after the agreement and the plaintiff took possession of the building and started residence with his family. Subsequent to the execution of the agreement, the 1st defendant approached the plaintiff and told him that she is prepared to sell the building to the plaintiff for a sale consideration of Rs. 75,000/-, after adjusting Rs. 3,500/- given as advance, the balance amount of Rs. 771,500/- has to be paid by the plaintiff to the 1st defendant and the same was paid on 20/01/1981. An endorsement was made to the above effect in the agreement on 20/01/1981. She handed over all the documents pertaining to the building to the plaintiff. Besides, according to the said agreement, the plaintiff has to remit all balance installments to the GCDA. The plaintiff was regular in paying the installments to the GCDA. The last and final instalment was paid on 23/06/2005. The plaintiff also paid property tax to the Corporation. Though the plaintiff tried to contact the 1st defendant for getting assignment of the building, he could not contact her since she changed her residence. Even now the whereabouts of the 1st defendant are not known to the plaintiff. The plaintiff continued his residence in the building till 1995. Between 1995 to 2006, he let out the building to various tenants. In the year 2006, plaintiff renovated the building expending about Rs. 3 lakhs. He replaced the tiled roof with RCC roofing. Though the building was not let out after 2006, it is in the absolute possession of the plaintiff. On 26/06/2007, the plaintiff was summoned to the Gandhi Nagar Police Station based on a complaint filed by the 2nd defendant. On enquiry, it is understood that a complaint has been filed by the 2nd defendant alleging that the plaintiff trespassed into the plaint schedule building on 25/06/2007 and the building is in the ownership of the 2nd defendant. When the plaintiff submitted all the documents before the police, the police directed the parties to approach the Civil Court. Thereafter, on 29/06/2007, the 2nd defendant in collusion with the 1st defendant criminally trespassed into the plaint schedule building and forcibly dispossessed the plaintiff from the building and illegally took possession of the same. Therefore, the plaintiff approached the Civil Court for a decree of restoration of possession and prohibitory injunction under Section 6 of the Act.

(2.) The 1st defendant filed a written statement in the Court below contending as follows: The 1st defendant is an unnecessary party to the suit. The plaintiff was not in possession of the plaint schedule building at any time during six months prior to the institution of the suit. Therefore, no suit can be filed under Section 6 of the Act. It is denied that the plaintiff renovated the building expending more than Rs. 3 lakhs. The suit is not properly valued. The plaintiff has filed the suit raising false and vexatious claims. He was sent out of the plaint schedule building in the year 1995 and he was not even in permissive occupation of the building at any time thereafter. It is denied that the plaintiff offered sale of the building to the plaintiff and received Rs. 71,500/-. She has not handed over possession or occupation of the building to the plaintiff. The plaintiff was only allowed to occupy the building as a licensee from 30/11/1980. No endorsement was made on the reverse side of page No. 1 of the agreement. No documents were handed over to the plaintiff as alleged. The 1st defendant has not authorised the plaintiff to make payment of any instalments to the GCDA. The plaintiff was in occupation of the building from 30/11/1980 to 1995 as a licensee. He defaulted in paying the licence fee and when the licence fee was demanded, he evaded the payment. Occasionally he paid part of the defaulted licence fee payable to the 1st defendant to the GCDA as per express instructions given by the 1st defendant as an agent. It is denied that he paid last and final instalment on 23/06/2005. The claim that he paid building tax etc., is not correct. Due to the persistent default in paying licence fee, the 1st defendant demanded the plaintiff to vacate the building. In 1995, the plaintiff obtained a better building in Panampilly Nagar and shifted his residence. The 1st defendant was in occupation of the building. It was sold to the 2nd defendant on 12/03/2006. After 12/03/2006, the 2nd defendant is in occupation of the building, it is denied that the plaintiff let out the building to various tenants between 1995 to 2006. The documents produced by the plaintiff were entrusted to the 2nd defendant at the time of sale and plaintiff has illegally taken away those documents.

(3.) The 2nd defendant filed a written statement in the Civil Court contending as follows: He denied the agreement dated 30/11/1980 between the plaintiff and the 1st defendant. He also denied the payment of Rs. 71,500/- by the plaintiff to the 1st defendant and endorsement in the agreement. He denied that the plaintiff is paying building tax and property tax. The modification and spending of Rs. 3 lakhs by the plaintiff is also denied. The 1st defendant approached the 2nd defendant for sale of the property. Accordingly, an application was made before the Secretary, GCDA, on 24/01/2007 to transfer the allotment in the name of the 2nd defendant. On 12/03/2007, the 1st defendant put the 2nd defendant in possession of the building. On 13/3/2007, the Secretary, GCDA, has passed an order transferring the allotment in the name of the 2nd defendant. Therefore, from 12/03/2007 onwards the 2nd defendant is in possession of the building. On 25/06/2007, during the absence of the 2nd defendant, the plaintiff attempted to trespass into the building by breaking open the lock of the gate and the house and took some files. The 2nd defendant informed the matter before the Kadavanthara Police Station and the plaintiff was summoned to the Police Station. The plaintiff relied upon the alleged licence deed. There was no endorsement on the reverse side of page No. 1 of that deed. The police directed the plaintiff to approach the Civil Court. The 2nd defendant denied that on 29/06/2007 he trespassed into the plaint schedule property and forcibly dispossessed the plaintiff and illegally took possession of the building. The plaintiff is not entitled to restoration of possession. It is denied that the documents executed between the 1st defendant and the 2nd defendant are created as a result of fraud and collusion. Since the 2nd defendant is in absolute possession of the plaint schedule property as on the date of cause of action, the suit is not maintainable.