INDIAN OIL CORPORATION LTD., REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI Vs. JOSEPH PAUL, SON OF VACCO PAUL, AGED 50 YEARS, PARAPPILLIL LANE, ERNAKULAM, KOCHI

JUDGEMENT

(1.) The defendant in O.S. No.864 of 2007 on the file of the Sub Court, Ernakulam is the appellant herein.

(2.) The suit was filed for recovery of possession for the plaint schedule property after removing the constructions therein by the defendant from the possession of the defendant on the basis of the plaintiff's title and also on the ground of termination of lease agreement and also for recovery of damages for use and occupation with following allegations. The plaintiff is the absolute owner of the plaint schedule property having an area of 10.030 cents of property comprised in survey No. 912/2011 and 913/4 of Elamkulam village which he obtained as per partition deed No. 2656/72 of S.R.O, Ernakulam. This property was leased out to the defendant for the purpose of erecting petrol pump and service station as per registered lease date No. 3098/1981 of S.R.O. Ernakulam executed on 20.7.1981 for a period of 20 years with effect from 1.4.1981. It is alleged in the plaint that in the lease deed so executed, the defendant fraudulently incorporated a clause whereby the lease will automatically and without any further act of any of the parties thereto renew for a period of five years from the expiration of the period of twenty years. According to the plaintiff such a term was incorporated without his knowledge, as he did not know english. That apart, in the certified copy of the lease deed sent to the plaintiff by the defendant that portion, was struck off to mislead him.

(3.) After the expiry of twenty years, the plaintiff filed O.S. No. 396/2001 before the Sub Court, Ernakulam for recovery of possession, but that suit was dismissed on the ground that it is pre-matured one and also the defendant is entitled to get protection under section 106 of the Kerala Land Reforms Act. The plaintiff filed A.S.No.396/2005 before the District Court, Ernakulam and by judgment delivered on 29.6.2007, the District Court set aside the finding of the trial court that the defendant is entitled to get protection under section 106 of the Kerala Land Reforms Act and held that they are not entitled to get that benefit, but dismissed the appeal on the ground that it was premature as the lease period was not over confirming the finding of the trial court on that aspect. Now the period of lease expired on 31.3.2006 by efflux of time.