Kerala High Court · 2009

R.S.A.No.540 of 20092residence where the document was got executed. The further claim isthat he is tenant of the shop room protected by Act 2 of 1965. LearnedSub Judge found that Ext.A13 is valid and that contention of appellantthat he is a tenant is not proved. Accordingly decree for recovery ofpossession of plaint shop room with mesne profits was granted.Appellant took up the matter in appeal. Learned District Judge whileconfirming the finding of the trial court modified mesne profits payableby the appellant. Appellant is still aggrieved and has come up insecond appeal urging the questions.(i)Ext.A13 vitiated by fraudulentmisrepresentation and undue influence among other andcommitted on the executor?.(ii)Is the first appellate court correct in holdingthat appellant is not a tenant entitled to the protection ofAct 2 of 1965?.2.It is contended by learned counsel that courts below failedto take into consideration the circumstances under which Ext.A13 wasgot executed and the recitals in Ext.A13 regarding passing ofconsideration. Learned counsel contended that on evidence the courtsbelow ought to have answered the issue in favour of the appellant.3.That Sarojini Ammal had executed Ext.A13 dated 28-09-1993 in favour of respondent is not practically not disputed since thecontention of appellant is that the said document is vitiated by fraud, R.S.A.No.540 of 20093misrepresentation and undue influence. Under Order VI rule 4 of theCode of Civil Procedure (for short, “the Code”) when fraud,misrepresentation, or undue influence is set up as a ground of attack,the person setting up those grounds is required to give materialparticular of such fraud, misrepresentation and undue influence. Ihave gone through the copy of written statement of appellant given tome by learned counsel. The averments in it do not satisfy therequirements of order VI rule 4 of the Code. Apart from the statementthat Sarojini Ammal was taken by respondent and others to theirresidence sometime before execution of the document, there is nodetails of the alleged fraud, misrepresentation and undue influencegiven in the written statement. A bald statement in that regard cannotbe taken as a valid challenge to the document executed by SarojiniAmmal. Ext.A13 is a registered document. Its genuineness can bepresumed.3.Yet another contention advanced by learned counsel isregarding the consideration stated in Ext.A13. Though saleconsideration is stated as Rs.1,10,000/- the recital is that onlyRs.10000/-, was paid to Sarojini Ammal and rest of the amount wasreceived by her earlier from respondent for discharge of her liabilities.It has come in evidence and Exts.A6 to A9 show that Sarojini Ammalwas indebted even before execution of Ext.A13. Therefore, the recital R.S.A.No.540 of 20094in Ext.A13 that amounts were received from the respondent even priorto Ext.A13 need not be disbelieved. At any rate it has to beremembered that Sarojini Ammal though executed Ext.A13 on 28-09-1993 died on much later even as per submission of learned counsel forappellant. She never challenged Ext.A13. There is no evidence toshow that Ext.A13 is vitiated by any reason as contended by theappellant. It is also to be remembered that even as per the contentionof the appellant Ext.A13 is only voidable but, no steps have so far astaken to avoid Ext.A13 in accordance with provisions of law.4.So far as claim of tenancy is concerned Exts.B1 to B4 arerelied upon. Ext.B1 is said to be a kai book written on a paper from anote book which according to the appellant evidenced tenancy in hisfavour. Ext.B1 dated 05-02-1988 and as per evidence of appellant asDW1 his sister, Indirani wrote Ext.B1 but the said Indirani is notexamined as a witness. Ext.B1 does not mention the name of itsscribe, there is no description of the rent and to whom tenancy wasgranted, is also not mentioned. Ext.B1 is not signed by anybody as awitness. Appellant was not able to produce any receipt of payment ofrent. Though he claimed that he had business in the room in questionfor a long time he was not able to produce license either from the localauthority or from the Sales Tax Authority for such business. For nonproduction of rent receipts the explanation given by the appellant is R.S.A.No.540 of 20095not satisfactory. According to the appellant rent payable for twentyyears and ten months was adjusted in the advance paid. That is quietan incredible version. Even Ext.B1 do not indicate that the tenancywas created for such a long period. There is no evidence to show thatappellant is a tenant of the room in question. Hence he is not entitledto get protection under Act 2 of 1965. I have gone through thejudgment under challenge and also substantial question of law urgedin the memorandum of second appeal. The question raised did notinvolve any substantial question of law. This court while consideringsecond appeal cannot interfere with the finding of fact entered by thecourts below so far as it is not shown to be perverse or, without anyevidence at all.The second appeal fails. It is dismissed in limine.THOMAS P JOSEPH, JUDGESbna/