IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 SA.No. 326 of 1996(E) --------------------- AS.116/1992 of SUB COURT, TIRUR OS.139/1989 of MUNSIFF-MAGISTRATE COURT,PONNANI .................... APPELLANT(S)/APPELLANT/DEFENDANT: -------------- THERAYIL KARAPPAN, S/O.KUNHAN, 50 YEARS, RESIDING AT EZHUVATHIRUTHY AMSOM AND DESOM, PONANI TALUK. BY ADV. SRI.P.K.ABOOBACKER(EDATHALA) SRI P.K.IBRAHIM RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: --------------- 1. CHEEMAMAJIYARAKATHU SARU, W/O.LATE ALIAMAKANAKATHU ABOOBACKER, PONANI NAGARAM AMSOM AND DESOM, PONANI NAGARAM (P.O.), MALAPPURAM DISTRICT. 2. ABDURAHIMAN, AGED 23, S/O.LATE ALIAMAKANAKATHU ABOOBACKER, PONNANI NAGARAM, AMSOM AND DESOM, PONANI NAGARAM (P.O.), MALAPPURAM DISTRICT. 3. JAMEELA, AGED 20 YEARS, D/O.LATE ALIAMAKANAKATHU ABOOBACKER, PONANI NAGARAM AMSOM AND DESOM, PONANI NAGARAM (P.O.), MALAPPURAM DISTRICT. ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, ALONG WITH SA NO. 327 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.326 of 1996 & S.A.No.327 of 1996 -------------------------------------- Dated this the 25th day of March, 2009. JUDGMENT These Second Appeals at the instance of the defendant arise from the common judgment and decree for prohibitory and mandatory injunction. The substantial question of law arising for a decision is whether the appellant/defendant is a lessee of the shed and without recourse to the provisions of Act 2 of 1965, he is liable to be evicted by a decree for mandatory injunction. 2. Short facts necessary for consideration of these appeals are: Original plaintiff (he died pending suit and his legal representatives, respondents herein were impleaded as supplemental plaintiffs) claimed that the 58 cents (excluding the 8 cents given to one Vaniyamparambil Karuppan by way of kudikidappu) which is the subject matter of O.S.No.138 of 1989 belonged to him as item No.7 of Ext.A2, partition deed. Karuppan was a care taker of the property. There is a shed in the said 58 cents where, the original plaintiff permitted the said Karuppan to run a tea shop. While so, Karuppan got purchase certificate in respect of his kudikidappu (8 cents) from the Land Tribunal. After the death of Karuppan, his wife Valliyammu continued residence in the said 8 cents, looked after the suit property and on permission SA Nos.326 & 327/1996 2 from the original plaintiff, continued to run the tea shop in the shed. While so, Valliyammu assigned the said 8 cents to the appellant as per assignment deed dated 27.10.1977. After the appellant/defendant acquired the 8 cents as stated above, original plaintiff permitted him to conduct tea shop in the said shed in the suit property. In the meantime the appellant sold the said 8 cents to one Aminumma as per assignment deed dated 9.6.1989. Following that, as per Ext.A4(a), notice dated 11.7.1989 original plaintiff cancelled permission granted to the appellant to conduct tea shop in the shed. To that notice, appellant replied as per Ext.A5 dated 31.7.1989 claiming that he is the lessee of the shed in question. Thereon original plaintiff filed O.S.No.138 of 1989 seeking decree for prohibitory injunction to restrain the appellant from trespassing into the suit property (other than the shed) and O.S.No.139 of 1989 seeking decree for mandatory injunction to direct the appellant to vacate the shed and claiming damages for its use and occupation at the rate of Rs.30/- per month. In both the cases the appellant contended that original plaintiff's father had leased out the shed to Karuppan for a rent of Rs.3/- per month and that as the adopted son of Karuppan and Valliyammu, he has been staying along with Karuppan and Valliyammu in the 8 cents which later Karuppan acquired by way of kudikidappu. After the death of Valliyammu appellant has been conducting the tea shop, he having inherited the lease hold right as the adopted son of Karuppan and Valliyammu. It is also his contention that original plaintiff had demanded and SA Nos.326 & 327/1996 3 obtained from him rent at the rate of Rs.10/- per month. It is his claim that he is liable to be evicted from the shed only under the provisions of Act 2 of 1965. Both sides adduced evidence on the contentious issues. Learned Munsiff found that the appellant is only a licensee of the shed which is the subject matter of O.S.No.139 of 1989, he has no right or interest in the 58 cents which is the subject matter of O.S.No.138 of 1989 and accordingly granted decree for mandatory injunction with respect to the said shed and prohibitory injunction with respect to the rest of the suit property. The appellant/defendant unsuccessfully challenged the common judgment and decree by way of separate appeals. The first appellate court concurred with the findings entered by the trial court and dismissed the appeals. Hence, these Second Appeals. 3. Though appellant had raised a contention that he is the adopted son of Vaniyamparambil Karuppan and Valliyammu and in that capacity inherited the entire property, the courts below found against that contention in the absence of evidence and the contradictory version of the appellant. That contention is not pressed before me. Learned counsel contended that the finding of the courts below that the appellant is only a licensee of the shed is unsustainable. According to the learned counsel, appellant is in possession of the shed which indicated that he is a lessee of the shed liable to be evicted only as per provisions of Act 2 of 1965. Learned counsel for SA Nos.326 & 327/1996 4 respondents/supplemental plaintiffs contended that there is no evidence to show that appellant is in exclusive possession of the shed. Learned counsel placed reliance on the decision of this Court in Rajappan v. Veeraraghava Iyer (1969 KLT 811). It is also contended that appellant has no consistent case as to how he got 'possession' of the shed. 4. Now that the plea of adoption and inheritance is not pressed before this Court, appellant has no legitimate claim over the suit property referred to in O.S.No.138 of 1989. What remained for consideration is only whether by way of mandatory injunction, appellant could be directed to vacate the shed which is the subject matter of O.S.No.139 of 1989. The answer depends on the question whether the appellant is only a licensee of the shed or, is a lessee as claimed by him. 5. A licence is a right granted to a person to do or continue to do something in or upon the property of the grantor which in the absence of such right would be unlawful. A lease of immovable property on the other hand is the transfer of a right to enjoy such property in consideration of a price paid or promised. In this case appellant has produced Exts.B1 to B9 in proof of his claim of lease. Exts.B1 to B9 are a demand notice and receipts for payment of building tax for the shed. It is pertinent to note that these documents are of the SA Nos.326 & 327/1996 5 year 1988 and thereafter. Ext.B3 is the only demand notice (in the name of the appellant) for payment of building tax but it came into existence after the institution of the suit. Even as per the case of the original plaintiff, during 1988 appellant was in occupation of the shed in question, though according to him as per a permission granted by him to conduct the tea shop. So far as the receipts for payment of building tax during the year 1988 and thereafter are concerned since it is not disputed that during that time appellant was in occupation of the shed, that payment cannot prove a lease in favour of the appellant since building tax can be demanded from and paid by the owner or occupier of the shed. Learned Munsiff has also expressed doubt as to how for a thatched shed, building tax could be demanded and received. Exts.B1 to B9 cannot show that appellant is in possession of the shed. Apart from Exts.B1 to B9 there is absolutely no evidence to show that appellant is in exclusive possession of the shed. Evidence as to the alleged licence has been given by PW1, the manager of the respondents. Ext.A1 is the power of attorney executed in favour of PW1. 6. It has been held that even a licensee can have some sort of 'possession' of the premises for the purpose of proper and effective enjoyment of the licence. The 'possession' of a lessee unlike in the case of a licensee is exclusive with the power to exercise control over the subject matter to the exclusion of all others. The lessee has the power to deal with the property as he SA Nos.326 & 327/1996 6 likes subject ofcourse to the terms and conditions if any, of the lease. That is not the 'possession' which the licensee can have. To determine whether it is a lease or licence, various factors including the purpose for which the property is given is to be considered. Circumstances proved in the case do not show that a lease was created in favour of the appellant. Learned Munsiff has considered all relevant facts, circumstances and evidence to hold that appellant is only a licensee of the shed and that the licence was terminated as per Ext.A4(a). First appellate court has concurred with that finding. There is nothing illegal or irregular in that finding. 7. So far as the right of the licensor to seek mandatory injunction on termination of the licence is concerned, Apex Court has held in Joseph Severance v. Benny Mathew (2005 (4) KLT 290) that it is open to the licensor to sue for mandatory injunction within a reasonable time of the expiry or the termination of the licence. In this case original plaintiff issued Ext.A4(a), notice dated 11.7.191989 terminating the licence and that was replied by the appellant as per Ext.A5 dated 31.7.1989. The suits were filed on 7.8.1989, certainly within a reasonable time. 8. No other point is raised for a decision. SA Nos.326 & 327/1996 7 These Second Appeals fail and are dismissed. No costs. C.M.P.No.770 of 1996 in S.A.No.326 of 1996 and C.M.P.No.772 of 1996 in S.A.No.327 of 1996 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA Nos.326 & 327/1996 8 Thomas P.Joseph, J. S.A.No.326 of 1996 & S.A.No.327 of 1996 JUDGMENT 25th March, 2009. SA Nos.326 & 327/1996 9