IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 SA.No. 519 of 1998(C) --------------------- OS NO.395/1992 OF MUNSIFF'S COURT, KOZHIKODE II AS NO.229/1994 OF DISTRICT COURT, KOZHIKODE APPELLANT/APPELLANT IN THE LOWER APPELLATE COURT/ DEFENDANT IN THE TRIAL COURT: -------------- CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY (COMMISSIONER), CALICUT BY ADV. SRI.K.D.BABU RESPONDENT/RESPONDENT IN THE LOWER APPELLATE COURT/ PLAINTIFF IN THE TRIAL COURT: --------------- KOZHIKODE DISTRICT LAWN TENNIS ASSOCIATION, REPRESENTED BY ITS SECRETARY, MANUAL SONS BUILDINGS, KCH ROAD, CALICUT. ADV. SRI.P.RADHAKRISHNAN SRI.MADHU RADHAKRISHNAN SMT. MEENA.K. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - S.A.No. 519 of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011 J U D G M E N T Aggrieved by the decree in OS 395/1992, the defendants in the suit has come up in appeal. 2. The parties and facts hereinafter referred to as they are available before the trial court. 3. Facts fall within a narrow compass. It is not in dispute that the property involved in this proceeding was given on license arrangement by the defendants to plaintiff, who claims that in pursuance to the license they had effected several constructions and improvements in the property and they are entitled to continue in the property as the license has become irrevocable. Alleging that defendants are attempting to disposes them unathorisedly, the suit was laid. 4. The defendants resisted the suit by pointing out that the plaintiff did not have possession, but only a right to occupy on a license. As per the terms of the license granted to the plaintiff, they were precluded from making any constructions 2 S.A.No. 519 of 1998 and therefore even if any constructions are made, it is contrary to the terms of the license and the license cannot be treated irrevocable. They would also say that at the time of granting license, the understanding was that every year for conducting an exhibition, defendant would be allowed to occupy the premises for a brief period. In 1990-91 also the exhibition was conducted but possession was not thereafter handed over to the plaintiff. On the basis of these contentions, it is pointed out that plaintiff is not entitled to any relief in the suit. 5. On the above pleading issues were raised. 6. The evidence consists of testimony of PW1 and Exts.A1 to A6 marked from the side of the plaintiff. Defendants had DW1 examined and had Exts.B1 and B2 marked. On a consideration of the material before it, the trial court came to the conclusion that the license has become irrevocable by virtue of the constructions made by the plaintiff and decreed the suit as prayed for. 7. The defendants carried the matter in appeal as A.S.229/1994. The lower appellate court found that the license 3 S.A.No. 519 of 1998 arrangement still subsisted but it did not concur with the findings of the trial court that the license has become irrevocable. Observing that there is nothing to show that there was a valid termination of the license arrangement, the appeal was dismissed. 8. Notice is seen issued on the following questions of law:- a. Having regard to the fact that Ext.A-2 would clearly show that the entrustment in question is only revokable license especially in view of the specific condition that the plaintiff is bound to hand over possession of the plaint property as and when required by the defendant-corporation and since the plaintiff was prohibited from making construction of a permanent nature, have not the lower courts committed an error in holding that the plaintiff is entitled to claim the benefit Section 60 (b) of the Easement Act? B) In as much as by Ext.A2 the plaintiff had been specifically prohibited by the defendant from making constructions of a permanent nature in the plaint property, have not the lower courts committed an error in finding that the plaintiff is entitled to the benefits of Section(b) of the Easement Act for the reason that the plaintiff had 4 S.A.No. 519 of 1998 put up Tennis Courts and other structures incidental to it in the plaint property which according to the lower courts are permanent structures? C) In an much as the defendant had taken over possession of the plaint property for the purpose of conducting the exhibition in the year 1990-91 and had not given back possession of the property to the plaintiff after the exhibition was over, have not the lower courts committed an error in finding that Ext.A-2 license had not been revoked by the defendant Corporation? D) Have not the lower courts committed an error in finding that the suit is upon the right of the plaintiff under Ext.A-2 to use the plaint property for their activities and as such there is no relevancy for the possession aspect in decreeing the suit for injunction as prayed for in the plaint? E) Have not the lower courts erred in not applying the Ruling of this Hon'ble Court reported in 1989(2) KLT 912 to the facts of this case and for dismissing the suit? 9. The learned counsel appearing for the appellant contended that courts below were not justified in decreeing the suit since the arrangement between the parties evidences only a license arrangement. The learned counsel went on to point out that, 5 S.A.No. 519 of 1998 Ext. A2 dated 10.05.1982 which is the document under which the plaintiff came to be in occupation evidences only a license arrangement and specifically prohibits the plaintiff from putting up any structures in the property. Section 60(b) of the Easements Act, is subject to the contract of the contrary. In the light of the above provision in Ext.A2, the plaintiff cannot contend that the license has become irrevocable. The learned counsel went on to point out that courts below are also not justified in coming to the conclusion that after extortion in 1990-91 the property has not been handed over to the plaintiff. 10. After having heard the counsel on either side and also after going through the records, this court is unable to understand how the appellant is really aggrieved by the decree passed by the lower appellate court. 11. In paragraph 16 of the lower appellate court judgment, it is observed as follows:- Relying on the decision reported in 1989(2)KLT 912 the learned counsel submits that the plaintiff, having agreed to the terms of Ext.A2 cannot adopt the belated posture to refute the provisions in the agreement which the plaintiff had undertaken on the ground that the license has become irrevocable in view of Section 60(b) of the Act. Whether the license is irrevocable in view of Section 60(b) may not be germane for consideration since how 6 S.A.No. 519 of 1998 what the defendant wants is to prevent the plaintiff from using the property without actually revoking the licence. 12. The above view seems to be correct. As long as there is no termination of the license arrangement the question of irrevocability does not arise for consideration. The lower appellate court has taken note the fact that till date, there is nothing to show that the license has been revoked. As long as the license is not revoked, the defendants in the suit cannot prevent the plaintiff from occupying the premises. In paragraph 20, the lower appellate court concludes as follows:- Since it had been found that the license was not revoked and since under Ext.A2 the plaintiff was entitled to use the plaint schedule property for the limited purpose in the manner mentioned in Ext.A2, the defendant cannot obstruct the plaintiff in using the plaint schedule property in terms of Ext.A2. As such the defendant is to be restrained from causing obstruction to the permitted user of the plaint schedule property by the plaintiff. Hence I concur with the findings of the court below. 13. The appellant was unable to show that they had revoked the license arrangement evidenced by Ext.A2. The 7 S.A.No. 519 of 1998 lower appellate court has only observed that unless and until the license is properly revoked, the occupation of the plaintiff cannot be interfered with. The lower appellate court was perfectly justified in reaching the above conclusion. 14. The respondents in this appeal have filed I.A. 1664/2010 pointing out that during the pendency of this appeal violating the decree of the courts below, the corporation has forcibly occupied the premises and later handed it over to the third party who had put up a theater there. It is unnecessary to go into the merits and demerits of the these allegations made in this petition for the simple reason that if the plaintiff in the suit feel that the decree had been violated, they are at liberty to take such steps which are available to them under law. 15. The learned counsel appearing for the respondents also brought to the notice of this Court the orders passed in CRPs 824/1993 & 825/1993. Those were revision petitions arising from the interlocutory orders in the two suits one filed by the respondent herein and other by appellant. The suits filed by 8 S.A.No. 519 of 1998 respondents herein was OS 395/1990 from which the present appeal arises and the suit filed by the appellant was OS 463/1992. 16. It appears that the interlocutory applications filed by the respondents were dismissed and that filed by the appellant was allowed, which was confirmed in appeal. That brought the respective parties before this court. 17. What is emphasized by the learned counsel for the appellant is that his observation in paragraph 20 page 9 of the order to the effect which reads as follows:- “so also no provision is made to agree empowering the respondents to revoke or terminate the arrangement under a permanent decree“. The learned counsel for the respondent pointed out that therefore the appellants are incompetent to terminate the license in view of the observation made by this Court while disposing of this revision petitions. 18. Apart from the fact that the said observation was made by the interlocutory stage, the issue as to whether the Corporation is competent to terminate the license does not 9 S.A.No. 519 of 1998 arises for consideration now, because there is nothing to show that there has been a valid termination of A2 arrangement. The question as to irrevocability as also the conclusiveness of the observation made by this Court while disposing of the CRPs are matters which do not arise in the present context. These questions need to be gone into only when the appellant takes steps to terminate the license arrangement and interfere with the occupation of the plaintiff. 19. The lower appellate court had clarified the position that the revocability of the license does not arise for consideration. As rightly notified by the lower appellate court all that one needs, at this point of time, is to consider whether there has been a valid termination of the license arrangement evidenced by Ext.A2. There is nothing to indicate that there has been termination in accordance with law. Under such circumstances the lower appellate court was inclined to confirm the findings of the trial court to the extent that the respondents are entitled to be in occupation as per the terms of Ext.A2 license. 10 S.A.No. 519 of 1998 It is not shown that the findings of the lower appellate court is either perverse or unwarranted by the materials on record. No grounds are made out to interfere with the judgment and decree of the lower appellate court. This appeal is devoid of merits and is accordingly dismissed. P.BHAVADASAN, JUDGE kkj