Naseema N. vs Abdul Khader

P. Bhavadasan, J.—This appeal is by the claimant in an application under Order XXI Rule 99 of the Code of Civil Procedure, whose petition asserting rights over the property was rejected by the court below.

The facts absolutely necessary for the disposal of this appeal are as follows:

According to the claimant, she began to reside in the petition schedule building after she had to leave her matrimonial house. The building belonged to one Muhammadali Kadiri. She claims to have taken it on rent since 2003 on a monthly rent of Rs. 75/- which was subsequently enhanced to Rs. 200/- per month. The rent has been paid till August, 2012. Being a tenant, she contended that she cannot be evicted in execution of the decree in O.S. 70 of 2005 to which she is not a party and she can be evicted only by taking recourse to the Rent Control Act.

The claim petition was resisted by the first respondent who pointed out that the building belonged to him, which he obtained in the partition deed of 2003 and when the second respondent and others refused to vacate the premises he had filed a suit. According to him, the claimant is a person set up by the second respondent in order to ward off the eviction in terms of the decree obtained by him and he had never entered into any arrangement with the claimant as claimed by her. He therefore prayed that the claim petition may be dismissed.

On the above pleadings, issues were raised by the court below. The evidence consists of the testimony of P.W. 1 and documents marked as Exts. P1 series and P2 from the side of the claimant and contesting respondent examined himself as R.W. 1 and had Exts. B1 and B2 marked. Ext. C1 is the commission report. On appreciation of the evidence in the case, the execution court came to the conclusion that there was absolutely no material to show that there was any tenancy arrangement between Muhammadali Kadiri and the claimant and she had no right to remain in the property. Accordingly the claim petition was dismissed.

The aggrieved claimant carried the matter in appeal as A.S. 3 of 2004 and the lower appellate court, after re-appreciation of the materials, came to the identical conclusion as that of the trial court and rejected the claim petition.

In this second appeal at the time of admission both parties were heard. Notice was given on the following questions of law formulated in the memorandum of appeal:

"i) Is the appellant a tenant of the decree schedule building and can she be evicted from this building, without resorting to the provisions contained in the Kerala Buildings (Lease and Rent Control) Act?

ii) So far as the appellant and her children are not rank trespassers to the decree schedule property and the building situated therein, can they be evicted without resorting to due process of law?

iii) Can the appellant and her children be evicted from the decree schedule building, under the guise of the decree passed in the above suit, wherein the appellant and her children are not parties?

iv) Have the courts below committed legal perversity in analyzing the evidence available in the case and coming to proper conclusions in the matter?

v) Are the impugned judgment and order sustainable in law?"

Learned counsel appearing for the appellant contended that both the courts below have not considered the significance of the documents produced by the petitioner which would show that she has been paying water charges, electricity charges, building tax etc., and that would show that she is residing in the building. According to the appellant, no contra evidence was produced by the respondents. It is therefore contended that the courts below were not justified in rejecting her claim.

Learned counsel appearing for the first respondent on the other hand contended that the petition now filed is a ploy adopted by the second respondent in these proceedings to ward off eviction pursuant to the decree obtained against her by the first respondent. That is evident from the affidavit filed by her in execution proceedings. Both the courts below have considered the evidence in considerable detail and have come to the conclusion that the claimant has failed to establish any right and that being essentially a finding of fact, no interference is called for.

In order to appreciate the controversy involved in this case, certain facts may be necessary. The property belonged to Muhammad Musaliar. He had a son by name Muhammadali Kadiri. He married Badarnneesa. Badarnneesa had a sister by name Sainaba. Suhara was married to Abdul Khader who was the plaintiff in the suit and the decree holder in O.S. No. 70 of 2005. Abdul Khader was working in Tamil Nadu Electricity Board and he retired from service. Sainaba was residing with Badarnneesa and all of them were residing in the same building owned by Shah Muhammedali Kadiri. On retirement, Abdul Khader too took up residence in the building.

The story goes that Muhammedali Kadiri assigned 5 cents of property in favour of Abdul Khader. He put up a building and took up residence therein. Suhara died on 23.3.2004. Then Abdul Khader, the decree holder, married another lady by name Hathika. On 30.9.2004 Mohammed Ali Kaderi also expired. Since Badarnneesa and others continued residence and inspite of demand by Abdul Khader to vacate the property, they did not do so, the suit was laid and decree was obtained for evicting them.

The story put forward by the claimant is that she got married in 1992 and had three children. Her husband deserted her and her marital life did not last long. She approached Muhammadali Kadri in 1998 and she too was allowed to stay in the building. She was provided with a room and kitchen. After the assignment in favour of Abdul Khader, he let out the room to the claimant and rent was periodically enhanced.

In support of her claim, the claimant mainly relies on Ext. P1 series of electricity bills which would show that the electricity charges were paid by her. It is significant to notice that both the courts below have noticed that electricity bills produced by the claimant stand in the name of the first respondent. Both the courts below found that those documents by themselves are not sufficient to prove the independent claim put forward by the claimant. Both the courts below appreciated the evidence and found it to be unconvincing and unreliable.

The courts below have noticed that in execution of the decree in O.S. 70 of 2005 the Amin had gone to the property on two occasions and on both the occasions the Amin did not find the claimant there and therefore, according to both the courts below, she has been inducted at a later stage. The commission report though says that the petitioner was seen in the property, both the courts below were unwilling to accept the tenancy claimed by her and came to the conclusion that that she had been set up to ward off eviction. Apart from the electricity bills produced by the claimant, there is nothing on record to show that she was a tenant of the building. No independent evidence was produced by the claimant to show that she was occupying the building. In the above circumstances, both the courts below were justified in not accepting the tenancy claimed by the claimant and holding that the she could be evicted from the building in execution of the decree in O.S. 70 of 2005. That finding does not call for any interference.

Faced with the above situation, learned counsel for the appellant prays that some time may be granted to the claimant to vacate the premises. He infact wanted time till 31st March, 2015 to vacate the premises. Learned counsel for the first respondent pointed out that the litigation has been going on for long and the claimant has already gained sufficient time and it will not be proper to grant extension of time till 31.03.2015. However learned counsel pointed out that he may not object to this Court granting one month''s time to vacate.

After having heard learned counsel on both sides and having perused the records and the judgment and decree, it is felt that time till 31st December, 2014 can be granted to the claimant to vacate the premises.

In the result, while confirming the order of the courts below, the claimant before the court below is granted time till 31.12.2014 to vacate the premises provided she files an affidavit on or before 30.09.2014 before the execution court unconditionally undertaking to vacate the premises on or before 31.12.2014. There will be no order as to costs.