MOHANAMBAL Vs. VEERAMANI

JUDGEMENT

(1.) The plaintiff is the appellant. The father of the plaintiff took on rent a building from the father of defendants 1 and 2. The father of the plaintiff died in the year 1969. He left behind his widow, two sons and five daughters including the plaintiff as his legal representatives. It is said that a portion of the building was surrendered on 11.12.1975 and the rest continued to he held on tenancy on a reduced rent of Rs. 20/- per month from the rent of Rs. 40/- per month that was payable earlier. The defendants filed R.C.O.P. 110 of 1977 before the Rent Control Court for eviction under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act on the ground that they bona fide needed the building occupied by the tenant. In that application defendants 1 and 2 impleaded only the widow and one of the sons of the original tenant. That son is defendant No. 3 in the present suit. An order for eviction was passed therein. That order was affirmed in appeal and further affirmed in a revision by this Court under S.20 of the Rent Control Act. Thereafter defendant No. 3 herein appears to have filed an original application before the Land Tribunal claiming some rights under the Kerala Land Reforms Act. That proceeding was also dismissed. It was when defendants 1 and 2 attempted to take delivery of the building in execution of the order in R.C.O.P. 110 of 1977 as affirmed in revision that the present suit was filed by the plaintiff one of the daughters of the original tenant claiming that the order for eviction in R.C.O.P. 110 of 1977 was not binding on her and she could not he dispossessed in execution of the order passed therein. Her case was that on the death of the original tenant, the tenancy right devolved not only on the widow and one of the sons of the original tenant but on his widow and all his seven children including the plaintiff and defendant No. 3 and since the order for eviction was obtained without impleading all the heirs of the original tenant, the order was not binding on the other heirs of the original tenant including the plaintiff. The plaintiff therefore sought the relief of a declaration that the order in R.C.O.P. 110 of 1977 was not binding on her and for a perpetual injunction restraining defendants 1 and 2 from executing the order for eviction in R.C.O.P 110 of 1977.

(2.) Defendants 1 and 2 resisted the suit by contending that on the death of the daughter of the plaintiff, the original tenant, his legal representatives had surrendered the residential premises held on tenancy and that on 11.12.1975 a fresh tenancy arrangement had been entered into regarding the present premises between the landlord on the one hand and the widow and son of the original tenant, namely, the parties to the proceeding before the Rent Control Court on the other, and since only the widow and the son were the tenants, they have been impleaded and the plaintiff has no right either to the declaration sought for by her or to seek a perpetual injunction restraining the execution of the order for eviction. It was alternatively contended that even if it be taken that the original tenancy continued, the order for eviction was binding on the present plaintiff since her mother and brother had substantially represented the estate of the deceased original tenant and since the present plaintiff had no defence peculiar to herself which was not available to the widow and son of the deceased original tenant impleaded before the Rent Control Court, the plaintiff was bound by the order for eviction.

(3.) The Trial Court found that defendants 1 and 2 have not established the fresh entrustment in favour of the widow and son of the original tenant set up by them, though it found that a portion of the premises originally held had been surrendered to the landlord subsequent to the death of the original tenant. But the Trial Court took the view that the order for eviction in R.C.O.P. 1 10 of 1977 would be binding on the plaintiff in view of the fact that the estate of the deceased tenant was substantially represented by the widow and son of the deceased tenant impleaded as the respondents in the application for eviction and hence the present plaintiff was not entitled to the reliefs claimed by her in the present suit. The Trial Court therefore, dismissed the suit. The lower appellate court did not enter any specific finding on whether the fresh entrustment set up by defendants 1 and 2 was established or not. But it proceeded on the basis that the estate of the original tenant was substantially represented in R.C.O.P. 110 of 1977 and it was bona fide litigated by the widow and son of the original tenant and consequently the order for eviction passed therein is binding not only on the widow and son who are eo nominee parties to that proceeding but on the other heirs of the deceased tenant as well. Thus the appellate court confirmed the dismissal of the suit by the Trial Court. It is this decree that is challenged by the plaintiff in this Second Appeal. I may incidentally noticed that this court had not granted an interim order of stay while admitting this Second Appeal and it is submitted that defendants 1 and 2 had executed the order in R.C.O.P. 110 of 1977 and had obtained possession of the disputed building. That fact of course cannot preclude the hearing and disposal of this Second Appeal on merits and if the plaintiff were to succeed in this Second Appeal, obviously she would be entitled to apply for restitution under S.144 of the Code of Civil Procedure.