MUNSIFF COURT, VARKALA v. RENUKA

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 23RD DAY OF JANUARY 2024 / 3RD MAGHA, 1945 RSA NO. 499 OF 2019 AGAINST THE DECREE AND JUDGMENT DATED 31.10.2018 IN AS NO.16/2010 OF SUB COURT, ATTINGAL AGAINST THE DECREE AND JUDGMENT DATED 31.10.2009 IN OS 267/2007 OF MUNSIFF COURT, VARKALA APPELLANT/APPELLANT/PLAINTIFF: RADHA RAMANAN, AGED 58 YEARS S/O.KUNJU RAMAN, K.R.NIVAS, KADAKKAVUR. BY ADVS. VAKKOM N.VIJAYAN SMT.V.RENJU SRI.P.ANIYAN RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 2 3 ASOKAN, AGED 69 YEARS S/O.KUNJU RAMAN, KRISHNASRAM VEEDU, SARKARA, CHIRAYINKEEZH, THIRUVANANTHAPURAM- 695 301 RENUKA AGED 68 YEARS D/O.KUNJURAMAN, CHERUKARA VEEDU, KADAKKAVOOR-695306 REMANI AGED 55 YEARS D/O.KUNJURAMAN, CHERUKARA VEEDU, RSA Nos.480 & 499 OF 2019 3 KADAKKAVOOR-695306 4 SASIDHARAN AGED 71 YEARS S/O.NEELAKANTAN MUNDUTHOPPIL VEEDU, NEAR DEVARU NADA TEMPLE, KADAKKAVUR-695306 BY ADVS. SRI.NIKHEL K GOPINATH FOR R1, R3 SRI.M.DINESH FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 23.01.2024 ALONG WITH RSA 480/2019 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA Nos.480 & 499 OF 2019 4 COMMON JUDGMENT Dated this the 23rd day of January, 2024 These regular second appeals have been filed under Section 100 read with Order XLII Rule 1 of the Civil Procedure Code, 1908.

2. RSA No.480/2019 is at the instance of the defendant, challenging the decree and judgment dated

31.10.2018 in A.S.No.15/2010 on the files of the Sub Court, Attingal, arose out of the decree and judgment dated

31.10.2009 in O.S.No.8/2008 on the files of the Munsiff's Court, Varkala.

3. RSA No.499/2019 is at the instance of the plaintiff, challenging the decree and judgment dated 31.10.2018 in A.S.No.16/2010 on the files of the Sub Judge, Attingal, arose out of the decree and judgment dated 31.10.2009 in O.S.No.267/2007 on the files of the Munsiff's Court, Varkala. Radha Ramanan, the defendant in O.S.No.8/2008 and the plaintiff in O.S.No.267/2007, is the appellant herein. RSA Nos.480 & 499 OF 2019 5

4. I shall refer the parties in this regular second appeal as 'Radha Ramanan' and 'Renuka' for convenience.

5. Radha Ramanan filed O.S.No.267/2007 to set aside a partition deed of the year 1973 and sought the relief of partition. O.S.No.8/2008 is a suit filed by one Renuka, as plaintiff, who is the third defendant in O.S.No.267/2007 and she sought eviction of Radha Ramanan from the plaint schedule property in the above suit, which was obtained by Renuka as 'B' schedule to the partition deed of 1973. According to Renuka, Radha Ramanan executed rent deed and got possession of the building as a tenant and therefore he is bound to vacate the building on termination of the lease.

6. The trial court after raising necessary issues, tried the case. PW1 to PW4 examined and Ext.A1 to A3 were marked. DW1 to DW5 examined and Ext.B1 to B21 were marked. X1 to X8 were also marked. Finally, the trial court found that O.S.No.267/2007 is barred by limitation and RSA Nos.480 & 499 OF 2019 6 accordingly, the same was dismissed while granting decree in O.S.No.8/2008 as under: “In the result, the O.S.267/07 and O.S.8/08 decreed in part as follows: (1) Plaintiff in OS 267/07 is entitled for 1/5 share on plaint E F schedule property and separate possession by metes and bounds (2) File final decree application within 3 month from the date of preliminary decree. (3) Plaintiff in OS 8/08 entitled for arrears of rent as prayed for. This suit i.e., OS 8/08 is not bar in filing fresh suit to obtain vacant possession of the plaint schedule shop room after the termination of the Ext.B1 period. Considering the facts and circumstances of the case there is no order as to cost.”

7. On appeal before the Sub Court, Attingal, the learned Sub Judge also confirmed the said finding.

8. At the time of admission, as per order dated

26.06.2019, my learned predecessor raised the following substantial questions of law: RSA Nos.480 & 499 OF 2019 7 “(i) Was the dismissal of the suit on the ground of limitation correct without finding which article of the Limitation Act would apply? (ii) Is not article 59 of the Limitation Act applicable? (iii) Did the courts below go wrong in non- suiting the plaintiff on the ground that he had knowledge about Ext.A1 partition deed in view of Exts X1 to X8 which all came into existence in 2007 in which year the suit also came? (iv) Were the courts below right in finding that the plaintiff had ratified Ext A1 partition deed because of him executing Ext B1 rent deed without considering the explanation offered by the plaintiff as to why he happened to execute it? (v) Was it correct to leave it without considering the contention of the plaintiff that his father's property was also included in Ext A1 without the junction of the father?” RSA Nos.480 & 499 OF 2019 8

9. The learned counsel for Radha Ramanan submitted that the relevant Article governing Limitation Act in O.S.No.267/2007 is Article 59 of the Limitation Act. But the courts below applied Article 60 of the Limitation Act and found that Radha Ramanan, who was aged 15 years at the time of execution of partition deed in 1973, marked as Ext.A1, would have filed the suit within three years of attaining his majority. According to the learned counsel, if Article 59 of the Limitation Act is applied, the date of knowledge is the starting point of limitation and therefore, the suit, O.S.No.267/2007, is within time.

10. Per contra, the learned counsel for Renuka submitted that O.S.No.267/2007 is a suit filed to set aside transfer of property made by the guardian of the ward and therefore, Article 60 of the Limitation Act would apply and thereby the period of three years' limitation would start when the ward attains majority.

11. On perusal of Ext.A1 partition deed No.327/1973, RSA Nos.480 & 499 OF 2019 9 it appears that Radha Ramanan was aged 15 years and he was represented by a guardian to effect the partition deed. If so, as rightly found by the trial court as well as the appellate court, the relevant Article governing limitation is Article 60 of the Limitation Act and if so, the suit filed by Radha Ramanan in the year 2007, after a long period of expiry of 3 years from the date of attaining his majority, is definitely barred by limitation. Therefore, the trial court and the appellate court rightly found so and the said finding does not require any interference by this Court. The substantial questions of law (i) and (ii) answered thus.

12. Coming to the other questions of law, in this case, Ext.B1 is a rent agreement executed in between Renuka and Radha Ramanan. On reading Ext.B1, Radha Ramanan admitted title of Renuka over the plaint schedule property and he occupied the same as a tenant. It is also to be noted that, admittedly, C schedule in Ext.A1 property allotted to Radha Ramanan and Radha Ramanan has been in RSA Nos.480 & 499 OF 2019 10 possession and enjoyment of the same, acting on the partition deed.

13. Thus, the available materials herein would go to show that Radha Ramanan accepted C schedule in Ext.A1 partition deed as the property allotted to him as per Ext.A1 and he subsequently accepted the same by executing Ext.B1 rent agreement in favour of Renuka, acting on Ext.A1 partition deed. Substantial questions of law (iii) and (iv) answered thus:

14. Insofar as 1/5th share claimed by Radha Ramanan in respect of E and F items of property in Ext.A1, the trial court granted preliminary decree in favour of Radha Ramanan and therefore, the 5th question of law does not arise for consideration. Thus it appears that the concurrent verdicts do not require any interference at the hands of this Court and accordingly, both appeals fail and are dismissed.

15. However, considering the request of the learned counsel for Radha Ramanan, six months' time is granted to RSA Nos.480 & 499 OF 2019 11 Radha Ramanan for vacating the plaint schedule property, provided the Radha Ramanan/appellant shall clear the entire arrears of rent amount within two weeks and file an affidavit before the trial court within a period of two weeks from today, undertaking to vacate the building on expiry of six months from today. If the arrears of rent failed to be deposited and the affidavit failed to be filed within two weeks, as directed, the grace period of six months granted by this Court shall not be available and the decree confirmed hereby to be put in execution without waiting for six months. All interlocutory orders stand vacated and all interlocutory applications pending in these regular second appeals stand dismissed. Registry is directed to forward a copy of this judgment to the court below concerned, within two weeks, for information and compliance. Sd/- A. BADHARUDEEN JUDGE