IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 28TH APRIL 2009 / 8TH VAISAKHA 1931 RFA.No.90 of 2006 --------------------- OS.400/1994 of PRL.SUB COURT, TRIVANDRUM .................... APPELLANT/DEFENDANT: ---------------------------- B.K. NARAYANA PILLAI, S/O. BALAKRISHNA PILLAI, RADHA BHAVAN, RISHIMANGALAM, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. BY MR.S.V.BALAKRISHNA IYER(SR), ADVOCATE. MR.V.K.RADHAKRISHNAN NAIR, ADVOCATE. MR.K.B.PRADEEP, ADVOCATE. RESPONDENTS/PLAINTIFFS: -------------------------------- 1. PARAMESWARAN PILLAI, S/O. LATE BHASKARA PILLAI, AGED ABOUT 45, CHANTHAVILA VEEDU, VAYALARIKATHU MURI, ULLOOR VILLAGE, THIRUVANANTHAPURAM. 2. RADHAKRISHNAN, S/O. LATE BHASKARA PILLAI, CHANTHAVILA VEEDU, VAYALARIKATHU MURI, ULLOOR VILLAGE, ULLOOR, THIRUVANANTHAPURAM. BY MR. C.UNNIKRISHNAN (KOLLAM), ADVOCATE, FOR R1 & R2 MR.V.VENUGOPALAN NAIR, ADVOCATE, FOR R1 & R2 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON 28.04.2009 DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- RFA. No. 90 OF 2006 ----------------------------------------------- Dated this the 28th day of April, 2009 J U D G M E N T The defendant in a suit for mandatory injunction, recovery of arrears of licence fees and consequential reliefs in which a decree of mandatory injunction was passed against him is the appellant in this appeal. The parties will be referred to as they were before the trial court. 2. The case of the plaintiff as averred in the plaint is that the plaint schedule property consists of 50 cents of land and a temporary shed along with the saw mill situated at Ulloor in a commercially important location within the limits of the Thiruvananthapuram city Corporation. The land belonged to late Sri.Bhaskara Pillai who granted licence to the defendant for the purpose of conducting trade in timber on 02/6/1967. The defendant is carrying on trade in timber in the schedule premises as licencee since 02/06/1997 and he executed a licence deed in favour of Bhaskara Pillai on RFA. N0. 90/06 -2- 30-09-1967. Sri.Bhaskara Pillai settled the property by executing settlement deed No.3648/1981 in favour of his children Nagarajan Pillai and Parameswaran Pillai. Nagarajan Pillai in turn settled his interest in the property in favour of his brother Radhakrishnan. The suit is filed by Parameswaran Pillai and Radhakrishnan ( respondents 1 and 2) as plaintiffs 1 and 2. Bhaskara Pillai used to take usufructs from the trees standing in the plaint schedule property and was enjoying the petition schedule property subject to the right of the defendant to carry on business as licencee and it has been so held by the Munsiff Court, Thiruvananthapuram in its judgment in O.S.No. 1181/1978 which has become final. Since the plaintiffs required the plaint schedule property for their own use, they terminated the licence by issuing notice through lawyer with effect from 02/03/1994 and requested the defendant to vacate the premises. RFA. N0. 90/06 -3- 3. The further case of the plaintiff is that the defendant committed default in payment of licence fee since September 1978 and after adjusting an amount of Rs. 2000/- which is available for set off, an amount of Rs. 16,270/- is due to the plaintiff. The defendants sent reply raising untenable contentions and without discharging arrears of licence fees. Hence the suit for a mandatory injunction commanding the defendants to remove the temporary sheds and saw mill and also to remove all the logs of timber kept on the plaint schedule property and to vacate the plaint schedule property and also for recovery of arrears of licence fee. 4. The defendant filed written statement contending that the suit is not maintainable. They also contended that the suit schedule property which was vacant on 10-02-1966 was leased out by late Bhaskara Pillai to the defendant on that day for the conduct of business in timber upon RFA. N0. 90/06 -4- execution of lease deed . The defendant levelled up the property and constructed a shed for the timber depot. Thereafter timber depot was started under the name and style of “Damor Brothers”. Since the land was leased out for commercial purposes prior to 20-05-1967 and sine the defendant has constructed buildings upon the land much prior to 20-05-1967, the defendant is entitled to the protection of Section 106 of the Kerala Land Reforms Act. The status of the defendant is not that of a licencee. No deed of licence was executed by the defendant on 30- 09-1967. The defendant was in possession of the land as a lessee since 10-02-1966. An amount of Rs. 2,000/- was given to the father of the plaintiff - Bhaskara Pillai out of which Rs. 1000/- was fixed as premium. The settlement deed did not confer any rights upon the plaintiff in the plaint schedule property. The lessor's rights in the land became vested with the Government under Section 72 of the Kerala RFA. N0. 90/06 -5- Land Reforms Act. The plaintiff or their predecessor never took usufructs from the trees standing in the plaint schedule property since 10-02-1966. O.S.No. 1181/1976 was a suit simplicitor for injunction and question of tenancy was never considered in that suit. The lease is not liable to be terminated and the defendant is not liable to be evicted. The above written statement was filed on 13-07-1975 and afterwards on 23-3-2000, the defendant would amend the written statement contending that if for any reason the court finds that the relationship between Bhaskara Pillai and the defendant was that of licensor/licensee, the licence is irrevocable since the licence was coupled with grant of interest in immovable property and acting on the licence, the defendant has executed works of permanent character incurring expenditure in the execution. Thus through the amended written statement, the benefit of Section 60(b) of Easement Act was also claimed. RFA. N0. 90/06 -6- 5. The learned Subordinate Judge formulated the following issues for trial : 1) Is the defendant licencee or lessee of the plaint schedule ? 2) Is the defendant entitled to get protection under Section 106 the Kerala Land Reforms Act? 3) When did the defendant came into possession of the plaint schedule ? 4) Is the defendant liable to pay any amount to the plaintiff as arrears of licence fee ? If so, what is the amount or is the defendant defaulted in payment of lease premium ? 5) Can the mandatory injunction prayed for be allowed ? 6) Reliefs and costs? Additional Issues 7) Whether issue NO.2 is to be referred to the Land Tribunal concerned under Section 125(3) of the KLR Act ? 8) Whether the defendant is entitled to the benefit of Section 60(b) of Easement Act ? RFA. N0. 90/06 -7- 6. At trial, the oral evidence consisted of the testimony of plaintiff as PW1 and that of the defendant as DW1 and that of a witness - a surveyor as DW2. The documentary evidence on the side of the plaintiffs consisted of Exts.A1 to A12. Ext.A1 is copy of the settlement deed executed by late Bhaskara Pillai in favour of his children. Ext.A2 is the settlement deed executed by Nagarajan Pillai in favour of his brother, the second plaintiff. Ext.A3 series are basic tax receipts in favour of plaintiffs 1 and 2. Ext.A4 is produced as a deed of licence executed by the defendant in favour of Bhaskara Pillai. Strong exception is taken by the defendant to Ext.A4 which according to him is a fraudulent document not executed by him. Ext.A5 is copy of the notice dated 3-2-1994 terminating the licence. Ext.A6 is the reply notice dated 11-02-1994. Ext.A7 is the copy of the plaint in O.S.No.1181/1978 which was a suit filed by the defendant praying that injunction be issued against the RFA. N0. 90/06 -8- plaintiff from creating obstruction in the matter of conducting timber business. Ext.A8 is the copy of the judgment in O.S.No. 1181/78. Ext.A9 is copy of the decree in O.S.No. 1181/78. Ext.A10 is the certificate issued by the Ulloor Panchayath. Ext.A11 is copy of the plaint in O.S.No. 1099/94 of the Munsiff Court, Thiruvananthapuram, a suit filed by the defendant, but later dismissed as withdrawn. Ext.A12 is copy of the written statement in O.S.No. 1181/78. Ext.B1 is the lawyer notice dated 21-04-1980 by which late Bhaskara Pillai terminated the licence and demanded vacant possession of the suit schedule property. Ext.B2 is copy of the affidavit filed by the defendant along with the petition to pass an order for returning Exts. A1 to A7 submitted before the court in O.S. No. 1181/78. Ext.B3 (a) is the plan prepared by DW3. Ext.B4 is also a plan showing the office building of the defendant. Ext.B5 is a notice which is seen issued as a reply to Ext.B1 notice. In RFA. N0. 90/06 -9- Ext.B4 it is contended that the defendant is not liable to be evicted and that the defendant is in possession of the property prior to 2-6-1967 as a lessee. Ext.B5 is copy of the Mahazar prepared in O.S. No. 1181/81. Ext.B6 series would go to show that the defendant was paying rent since 20-6-1967. Sketch of the property is also attached to Ext.B6 file. Ext.C1 is the report filed by the Advocate Commissioner Sri.S.N. Sarma. 7. The learned Subordinate Judge considered issue No.3 first. It was found that the said issue is virtually answered finally in Ext.A8 judgment in O.S.No. 1181/78. It was noticed that Ext.A4 lease deed relied on by the plaintiff to prove that the licence commenced on 30-09-1967 had been rejected in Ext.A8 suit and relying on the receipt which had been marked in Ext.A8 suit as Ext.A5, the learned Subordinate Judge would answer the issue finding that the defendant came into occupation of the property on 10-2-66. RFA. N0. 90/06 -10- 8. Issue Nos. 1, 2 and 7 were considered together by the learned Subordinate Judge. On making a thorough analysis of the evidence - oral, documentary and circumstantial in the light of certain judicial precedents which were cited before him, the learned Subordinate Judge held that the defendant failed to establish his claim as lessee and hence he is not entitled to the protection of Section 106 of the KLR Act. Issue Nos. 1 and 7 were answered against the defendant and it was found that he is only a licensee upon the plaint schedule property and that there is no necessity to refer Issue No. 2 to the Land Tribunal concerned under Section 125(3) of the KLR Act. Additional issue No. 8 regarding the eligibility of the defendant to the benefit of Section 60(b) of the Easements Act was answered next by the learned Subordinate Judge. This issue was also answered against the defendant by the learned Subordinate Judge after considering the ratio of RFA. N0. 90/06 -11- various judicial precedents cited before by the counsel and in the light of the evidence in the case. Issue No.4 regarding the plaintiff's entitlement for a decree for arrears of licence fee was answered against the plaintiff since it was found that the amount was deposited pursuant to the judgment of the Supreme Court. It was issue No. 5 regarding limitation which was answered by the learned Sub Judge last. It was noticed by the learned Subordinate Judge that the contention that the suit is barred by limitation does not have any foundation in the written statement. Nevertheless, the above contention was also considered on its merits and found against the defendant. 9. Very extensive submissions were addressed before me by Sri.S.V.Balakrishna Iyer, learned senior counsel for the appellant and by Sri.C.Unnikrishnan learned counsel for the respondents. With reference to the question whether the defendant is a lessee of the land forming RFA. N0. 90/06 -12- subject matter of the plaint schedule property, Sri.Balakrishna Iyer, learned senior counsel submitted that Ext.A4 is the document on which the plaintiff placed much reliance. According to him, the very nature of the document “ “ (counter part of lease) is indicative of the real relationship between the parties to the document. He submitted that the document shows that a right in immovable property has been created. He pointed out that the document recites that the defendant will have a right to put up saw mill. The document also says that it was for the said purpose that the property was put in possession of the defendant on 2-6-1967 on a monthly rent of Rs. 125/-. The document says that pursuant to the entrustment, possession was taken and sheds were put up. Document also recites that the same is being executed since Bhaskara Pillai, the lessor, wanted documentary evidence regarding the entrustment and its terms. Document also recites about RFA. N0. 90/06 -13- the security deposit and clearly mentions that monthly rent will be payable at the rate of 105/- after setting off interest calculated at the rate of 12% on the amount under deposit. Sri.Balakrishna Iyer, learned senior counsel, submitted that though the genuineness of Ext.A4 document is strongly disputed by the defendant who contends that he has not subscribed his signature to the same, the terms of the transaction between the parties is substantially as reflected in the document itself. According to him, the most serious contention of the defendant regarding Ext.A4 is that contrary to the date 02-06-1967 mentioned in the document, the transactions started really on 10-02-1966 and that a later date was mentioned in Ext.A4 with the sole purpose of defeating the defendant's eligibility for the benefit of Section 106 of the KLR Act. The crucial date in the context of Section 106, learned counsel pointed out is 20-5-1967 and this explains why a subsequent date is RFA. N0. 90/06 -14- mentioned in Ext.A4. Sri.Balakrishna Iyer submitted that the defendant had been consistently contending that a lease of the land was given to him on 10-02-1966. Ext.A7 plaint in O.S.No.1181/78 and Ext.A8 and A9 judgment and decree in that suit was referred to by the learned senior counsel. Sri.Balakrishna Iyer, learned senior counsel, submitted that apart from specifically pleading that he is a lessee of the land since 10-02-1966 he had also relied on the receipt dated 10-02-1966 to support the contention that his possession commenced on that date. Learned senior counsel highlighted that in Ext.A12 written statement filed in that suit, the plea of the plaintiff that the property was leased out to the plaintiff on 10-02-1966 was not denied. Learned counsel would read over to me paragraph 3 of Ext.A12 written statement. Learned senior counsel submitted that though the frame of O.S.No. 1181/78 which was as a suit for injunction and adjudication of rights RFA. N0. 90/06 -15- claimed by the present defendants under Section 106 of the KLR Act did not arise, the plaintiff herein being conscious of the right claimed by the defendant herein had denied the execution of receipt dated 10-02-1966 which was made mention of in paragraph 5 of Ext.A7 plaint and had also contended that the date of the lease is incorrect. It was asserted that the “lease” executed on 2-6-1967 and the document which is produced as Ext.A4 in this case was produced as Ext.B2 in Ext.A7 suit. According to the learned counsel, the finding in Ext.A7 suit that Ext.A4 is not a genuine document has been rightly accepted by the learned Sub Judge in the impugned judgment. 10. The learned senior counsel submitted that the contention of the present plaintiff in Ext.A12 written statement regarding receipt dated 10-2-1966 issued by Bhaskara Pillai was only a vague one, including the contention that the original is not produced and it is only a RFA. N0. 90/06 -16- photocopy which is produced. Learned senior counsel submitted that it is an undeniable fact that the receipt dated 10-2-1966 was produced and marked as Ext.A5. The document must have been marked through PW1 in that suit who is the present defendant. Sri.Bhaskara Pillai, the father of the plaintiffs himself was examined as DW1 in that suit and according to him, a reading of Ext.A8 judgment will show that no objection was raised at the time of hearing regarding the admissibility or evidentiary value of the document which was marked as Ext.A5. Ext.B2 application submitted by the present defendant for getting back the documents produced in O.S.No. 1181/1978 including Ext.A5 without success is also relied on by the learned senior counsel to submit that original of Ext.A5 was before the court which delivered Ext.A8 judgment. According to the learned senior counsel, the present plaintiffs cannot contend that what was marked as Ext.A5 in O.S.No.1181/1978 was a RFA. N0. 90/06 -17- photocopy or that even assuming that it was a photocopy which was marked as secondary evidence, the same could not have been relied on in that suit. Objections as to the admissibility of a document according to the learned counsel are to be raised at the appropriate stage and if objections are not raised, such objections will be taken to have been waived. For this proposition, the learned counsel relied on the judgment of this court in Anandan Nambiar v. Rajalakshmi ( 1988 (1) KLT 536) and that of the Supreme Court in R.V.E. Venkitachala Gounder v. Arulmigu Visweswaraswami & V.P.Temple and another ( 2003(8) S.C.C. 752) and also in Dayamathi Bai v. K.M.Shaffi ( AIR 2004 S.C. 4082). The said receipt dated 10-02-1966 is part of the record in the present suit as oral evidence of PW1 and according to the learned senior counsel, objections raised regarding its admissibility is to be overruled and the same is to be treated as part of the record. The RFA. N0. 90/06 -18- admissibility of the receipt dated 10-02-1966 will have to be decided by this court and the court below merely says that the document is not before the court, so submitted learned senior counsel. Learned senior counsel requested that the agreement dated 10-02-1966 may be relied on and it may be held that the jural relationship between the parties is that of lessor and lessee. Learned senior counsel submitted that having come to the court seeking reliefs relying on Ext.A4 the plaintiff cannot disown the evidentiary value of Ext.A4. Even going by the terms of Ext.A4 grant of an interest in immovable property is spelt out. Learned senior counsel submitted that it is found in Ext.A8 judgment that the defendant is in possession and enjoyment of the property as a lessee though it is also found that the said interest of the defendant does not take within its fold the right to pluck nuts from the coconut trees. 11. The learned senior counsel submitted that a RFA. N0. 90/06 -19- reading of Ext.A12 written statement and Ext.A8 judgment in O.S.1181 of 1978 will show that the plaintiffs and their predecessors had no case that the present defendant was holding the property as a licensee. He submitted that a case of licence is put forward for the first time only after Ext.P8 judgment and through Ext.B1 notice. To Ext.B1, Ext.B4 reply was given reiterating that the defendant is a lessee of the land entitled to protection of section 106 of the Kerala Land Reforms Act. Counsel argued that a reading of Ext.A4 will show that the intention of the parties was to create an interest in land in favour of the present defendant for the purpose of conduct of his trade. Referring to the judgment of the Supreme Court in Associated Hotels of India v. R.N.Kapoor, AIR 1959 SC 1262 and the judgment of this Court in Chandy Varghese v. Abdul Khader, (2003)3 KLT 553), the learned senior counsel submitted that the intention of the parties as gatherable from the documentary RFA. N0. 90/06 -20- evidence including Ext.A4was to create an interest in immovable property. According to him the clause inExt.A4 that on termination of the rental arrangement, the present defendant will remove the constructions will not detract from the grant of an interest. That clause is only by way of abundant caution and recognizes the right of the lessee under section 108(h) and his liability under section 108(m) of the T.P. Act. This clause helps the lessor only to the extent of exonerating him from the liability to pay any compensation to the lessee in the event of termination of the lease for the improvements effected by the lessee. Referring to Ext.Ext.B6 series the learned counsel submitted that these documents will strongly indicate that the defendant was paying rent. B6(e) receipt dated 2-7-1967, according to him, probabilises that an amount of Rs.1000- out the deposit of Rs.2000/- had been paid in the first instance. Ext.A4 would have been concocted by the RFA. N0. 90/06 -21- plaintiffs being quite oblivious of Ext.B6(e) receipt dated 2- 6-1967 for Rs.150/-. This rent receipts at any rate, the learned counsel submitted, will prove that the defendant is a lessee of the land. Referring to the judgment of this Court in Abdul Rahiman v. Iype, 1965 KLT 247 and of the Supreme Court in Chandy Varghese v. Abdul Khader, (2003) 3 KLT 553) and the judgment of this Court in Kochunni v. Kuriakose, (1981KLT 338) Mr.Balakrishna Iyer submitted that the defendant is a protected lessee under section 106 of the KLR Act. For this argument, the learned senior counsel relied on Ext.A4 document. According to him, since the plaintiff is relying on Ext.A4 it cannot be disputed that as on the date of Ext.A4 there had been construction of shed or sheds on the land. The time of construction of the sheds could have been any day between 2-6-1967 and 30- 9-1967. Ext.A10 certificate issued by the local authority cannot be pressed into service to argue that the sheds could RFA. N0. 90/06 -22- have been constructed only after 5-10-1968, the date of alleged remittance of fee for issue of permit to put up shed. Counsel pointed out that Ext.A4 dated 2-6-2007 is only 13 days from the appointed day – 20-5-1967, the relevancy of the amendment to Ext.A12 written statement, the emergence of Ext.A4 document contemporaneously with the said amendment, failure to prove due execution of Ext.A4 (both in the previous suit O.S. No.1181 of 1978 and in the present suit) marking of the agreement receipt dated 10-12- 1966 as Ext.A5 in O.S. No. 1181 of 1978 and its proof in O.S. No.1181 of 1978 become all the more important. Ext.B6(e) receipt dated 2-7-1967 evidencing payment of Rs.115/- as rent for the month of June 1967 also would very much probabilise that out of the rent of Rs.112/- per month, Rs.10/- alone was deducted for the month of June 1967. This in turn probabilises that the defendant was inducted into possession on 10-2-1966 after receiving Rs.1000/- as RFA. N0. 90/06 -23- deposit under the agreement dated 10-2-1966. According to the learned senior counsel in the light of all these evidence very little evidence alone is required to find that the construction of the shed was prior to 20-5-1967. The period from 10-2-1966 to 20-5-1967 is a long period of 15 months and it cannot be easily accepted that during that long period of 15 months a lessee did not put up any structure or shed at least to protect himself, his manual labourers and overseers and customers from the vicissitudes of climatic conditions. The oral evidence of the defendant in this context was quite convincing and according to the learned counsel the evidence in this case including circumstantial evidence is sufficient to hold that the defendant is entitled to the protection of section 106 of the KLR Act. The legislative objectives of the provisions contained in Section 106 of the KLR Act is to protect the lessees who had come into possession prior to 20-5-1967 RFA. N0. 90/06 -24- should not be lost sight of by this court, submitted Mr.Balakrishna Iyer. Receipt dated 10-2-1966 marked as Ext.A5 stands proved. Thus lease of land prior to 29-5-1967 stands proved. Having regard to the nature of the purpose for which the lease was granted, common course of natural events and human conduct and the recital in Ext.A4 regarding construction of the shed, the construction should have been immediately after 10-2-1966 and at any rate, much prior to 20-5-1967. Counsel argued that a presumption under section 114 of the Evidence Act can be drawn in