IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 RSA.NO. 957 OF 2009(E) ---------------------- AS.54/2008 OF SUB COURT, PERUMBAVOOR OS.198/2002 OF MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT – APPELLANT - PLAINTIFF: ----------------------------- GIRIJA VALLABHAN, AGED 62, S/O.VELU ACHUTHAN, THOMBAYIL HOUSE, KURICHILAKODE KARA, KODANADU VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S) – RESPONDENTS - DEFENDANTS: ------------------------------------------ 1. K.RAGHAVAN, S/O.KRISHNAN, NEDIYARA HOUSE, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK. KOOVAPPADY P.O. 2. KRISHNAN KUTTY, S/O.ACHUTHAN, THOMBAYIL HOUSE, KURICHILAKODE KARA, KODANADU VILLAGE, KUNNATHUNADU TALUK KOOVAPPADY P.O. 3. T.N.SUPRAN, S/O.NARAYANAN, THODATHY HOUSE, KANJIRAKKAD, PERUMBAVOOR PERUMBAVOOR P.O. ADV. SRI.DINESH R.SHENOY(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 957 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of November, 2009 J U D G M E N T ---------------------- The Second Appeal arises from judgment and decree of learned Sub Judge, Perumbaovoor in A.S. No.54 of 2008 confirming judgment and decree of learned Munsiff, Perumabvoor in O.S. No.198 of 1992 refusing to grant declaration and injunction in favour of appellant. 2. According to the appellant/plaintiff, himself and his elder brother, the late Achuthan were provided with a 7.4 H.P. motor pump set by the local authority in the year 1973 and they installed the same on the bank of the Thodu in old survey No.162/3 which belonged to the father of respondent No.1/defendant No.1. Appellant and his brother obtained permission from the father of respondent No.1 and constructed a shed to house that pump set. Achuthan, brother of appellant died and thereafter appellant alone is using the pump set. While so, notice was issued to the appellant from the Panchayat directing him to remove the pump set. According to the appellant permission granted to himself and brother, deceased Achuthan by the father of respondent No.1 is an irrevocable licence and hence he is not liable to vacate the place where the shed has been constructed. R.S.A. NO.957 of 2009 -: 2 :- Respondent No.1 executed a sale deed in favour of respondent No.3 assigning his property including the portion where the shed is situated. Appellant therefore prayed for a declaration that the recital in the sale deed in favour of respondent No.3 is not binding on the appellant and for injunction against respondents trespassing into the property described in the plaint schedule, i.e. the place where the shed is constructed. Respondents contended that a Committee of farmers who are beneficiaries of the pump set was formed and in their interest the pump set was installed in the property with the permission of the father of respondent No.1. Convener of the beneficiary committee was the late Achuthan. Electric connection was also taken in his name. Now the appellant is attempting to convert the pump set for his personal use, other beneficiaries having obtained pump sets for themselves and installed the same in their respective paddy field. Respondents denied that there is any licence in favour of the appellant and much less any irrevocable licence. Learned Munsiff found that appellant has no conceivable right in the suit property and refused to grant declaration or injunction. First appellate court confirmed the same. Hence the Second Appeal urging by way of substantial question of law whether the appellant who is admittedly enjoying the motor pump set for the last 35 years can be R.S.A. NO.957 of 2009 -: 3 :- forcibly resisted from enjoying such benefit without resorting to due process of law. Learned counsel for appellant urging the above question contended that until evicted by due process of law appellant is entitled to be in possession of the suit property even if it is assumed that he is not entitled to the declaration prayed for. Learned counsel who took notice for respondent No.2 supported the finding entered by the courts below. 3. Though it would appear from the contentions raised that a plea of irrevocable licence under Section 60(b) of the Easement Act (for short, “the Act”) is set up, learned counsel in all fairness stated that as per the plaint averments permission was granted by the father of respondent No.1 to the beneficiary committee to put up the shed and hence appellant may not be justified in seeking protection under Sec.60(b) of the Act individually. Even otherwise, for the application of Sec.60(b) of the Act it must be shown that the licensee, acting upon the licence has put up permanent structure. In deciding whether the structure is permanent or not various considerations should weigh such as purpose of the construction, period for which it is constructed and the nature of construction including the materials used (See Dukari Saha v. Kumarish Chandra Garai, AIR 1990 Calcutta 143). Apart from the fact that permission granted by the R.S.A. NO.957 of 2009 -: 4 :- father of respondent No.1 was not only not to the appellant but to the beneficiary committee of which appellant may have been a member, there is no acceptable evidence to show that nature of construction comes within the mischief of Sec.60(b) of the Act. Therefore appellant cannot urge a plea under Sec.60(b) of the Act. 4. Then the question is whether appellant having been once a beneficiary along with others could continue to be in the suit property, seek a declaration that the recital in the assignment deed executed by respondent No.1 in favour of respondent No.3 is not binding on him and seek injunction against the owner of the property when otherwise he has no conceivable right to remain in occupation. Evidence on record would show that permission was granted to the beneficiary committee the convenor of which was the late Achuthan. Appellant figured only as one among the beneficiaries and hence it cannot be contended that appellant is a licensee under the father of respondent No.1. Nor can he be said to be in possession of the property. Even if he is a licensee when the licence is terminated, right of the licensee is only to have reasonable time to vacate the premises as provided under Section 63 of the Act. Termination of the licence could be in various ways. In this case apart from the fact that appellant is not a licensee, respondents who are the original owners of the property R.S.A. NO.957 of 2009 -: 5 :- denied that appellant is a licensee. They filed written statement that appellant has no right to be in occupation. A further fact which is not disputed is that respondent No.1 has conveyed his right, title, interest and possession of the suit property to respondent No.3 as per Ext.A11 and under Sec.59 of the Act unless it is a case of irrevocable licence, transferee from the granter is not bound by the licence. Therefore even if it is assumed that appellant is a licensee, respondent No.3 who acquired right under Ext.A11 is not bound to recognize appellant as a licensee. 5. Assuming that appellant is a licensee it must end by Ext.A11 so far as respondent No.3 has not recognized him as a licensee. It is also the settled position of law that licensee has no ‘possession’ of the property as understood in law in the sense that he can exercise right of possession to exclude even the granter of licence. He is only in occupation of the premises. The owner of the property is the person in possession. Settled position of law informs me that even a person in possession unless his possession is settled, cannot seek injunction against the rightful owner as held in Premji Ratnasey Shah v. Union of India (1994) 5 SCC 547). I do not forget that this Court in Mohammed v. Unni (1999 (1) KLT 756) has distinguished the decision of the Apex Court that in cases R.S.A. NO.957 of 2009 -: 6 :- where a person is in possession under a colour of title or a right to be in possession, he can continue in such possession until evicted by due process of law. Appellant has no colour of title and cannot claim injunction against the owner of the property. Courts below have considered the evidence on record and found that appellant has no conceivable right in the suit property so that he is entitled to any of the relief prayed for. No substantial question of law do arise for decision in this Second Appeal. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.957 of 2009 -: 7 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.957 of 2009 =================== J U D G M E N T 5H NOVEMBER, 2009