IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 SA.No. 618 of 2000(F) --------------------- AS.66/1994 of II ADDL.DISTRICT COURT,ERNAKULAM OS.652/1992 of PRINCIPAL SUB COURT,ERNAKULAM .................... SECOND APPELLANT(S): RESPONDENTS- DEFENDANT ----------------------------------------------------------------------------------- 1. N.K.SOUDAMINI, D/O. LATE KUMARAN, MANNATTU HOUSE, EROOR , THRIPUNITHURA. *2. K.K.NARAYANAN, MANNATTU HOUSE, EROOR, THRIPUNITHURA (DIED) *2ND APPELLANT DIED. LRS IMPLEADED AS ADDL. A3 & A4. 3. ANIL KUMAR N.N.S/O.LATE K.K.NARAYANAN, MANNATTU HOUSE,EROOR, THRIPUNITHURA. 4. ANJU N.N. MINOR AGED 14, D/O. LATE K.K.NARAYANAN DO. DO. *ADDITIONAL APPELLANTS 3 AND 4 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT AS PER ORDER DTD. 19.2.02 ON CMP. 1810/2001. BY ADV. SRI.K.GEORGE VARGHESE KANNANTHANAM SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): APPELLANT/PLAINTIFF ----------------------------------------------------------- *RAGHUVARAN, S/O. K.V.KESAVAN, ARAKKAL, KANIYAMPUZHA ROAD, EROOR, TRIPUNITHURA. (DIED) tss S.A. NO.618/2000 *ADDL. R2 TO R4 IMPEADED. 2. SMT.RAMANI M.K., AGED ABOUT 64 YEARS, W/O. LATE RAGHUVARAN, ARAKKAL KANIYAMPUZHA ROAD, EROOR PIN 682 306. 3. SMT.DRISIA REGHUVARAN AGED ABOUT 30 YEARS, D/O. LATE RAGHUVARAN, DO. DO. 4. SMT.ATHYULIA SHEERABAN K. REGHU, AGED ABOUT 24 YEARS, D/O. LATE RAGHUVARAN, DO. DO. *ADDL. R2 TO R4 ARE IMPLEADED BEING THE LR'S OF THE DECEASED SOLE RESPONDENT VIDE ORDER DTD. 27.10.2011 IN IA. 1206/2011. ADDL.R2 & R3 BY ADVS.SRI.S.SHYAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ---------------------------------------------------- SA No.618 of 2000-F ----------------------------------------------------- Dated this the 16th day of December 2011 Judgment The defendants in OS No.652/1992 before the Sub Court, Ernakulam are the appellants. They suffered a decree at the hands of the courts below. During the pendency of the appeal, the second appellant died and his legal heirs are brought on the party array as additional appellants 3 and 4. The respondent also died and his legal heirs are impleaded as additional respondents 2 to 4. 2. Kunjulekshmy had two daughters, namely, Soudamini and Ramani. Soudamini got married to Narayanan and Ramani to Raghuvaran. Ramani was elder among the two sisters. The suit property admittedly belonged to Kunjulekshmi and is a portion of 96 cents of land owned and possessed by her. She executed Ext.B1 sale deed in favour of Raghuvaran in respect of the plaint schedule property. SA 618/00 2 3. The appellant herein had laid OS No.220/92 seeking a declaration and permanent prohibitory injunction against Raghuvaran and his mother. The claim in the suit was that at the time of marriage of Soudamini to Narayanan, no ornaments or property were given to her and it was promised that 48 cents out of the 96 cents with the building will be given to her and on that premises, they had taken up residence in the building situate in the plaint schedule property. It was also alleged in the plaint that Kunjulekshmi was residing with the appellant and when the relationship between Kunjulekshmi and the appellant became strained, Kunjulekshmi stopped taking food from their house. It is alleged that Ramani took advantage of the situation and began to provide food for Kunjulekshmi. Under the influence of Ramani, Kunjulekshmi is said to have executed Ext.B1 document. They, therefore, allege that Ext.B1 is executed by exerting undue influence and is not supported by consideration. SA 618/00 3 4. The defendants in the suit filed a written statement, disputing the allegations. 5. Raghuvaran, in turn, instituted OS No.220/92 initially before the Munsiff's Court, Ernakulam, seeking declaration of his title and possession, mandatory injunction, prohibitory injunction and damages. He based his claim on Ext.B1 document and pointed out that the residence of appellants in the building in the suit property was in the status of licensees. Since he did not wish to continue the licence arrangement, he wanted the appellant to vacate the premises and hand over possession to him. 6. The suit was resisted by the appellant, pointing out that the suit is illegal and that she is entitled to continue in the residence. The appellant pointed out that eversince the marriage of Soudamini with Narayanan, they have been in possession and enjoyment of the suit property and Raghuvaran has no manner of right over the suit property. 7. The suit field by Raghuvaran was transferred SA 618/00 4 to Sub Court, Ernakulam and re-numbered as OS No.652/92 and tried jointly with OS No.220/92 pending before the Sub Court. OS No.220/92 was treated as the leading case and evidence was adduced in the said case. Evidence consists of the testimony of Pws 1 and 2 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B7 marked. 8. The trial court, on an evaluation of the evidence in the case, found Ext.B1 sale deed in favour of Raghuvaran executed by Kunjulekshmi to be valid and binding and declared his title. However, the trial court took the view that possession had not been proved by Raghuvaran and also that there is no evidence to show that the licence arrangement under which Raghuvaran claimed that the defendants in his suit were occupying the premises was not terminated and therefore, the prayer for mandatory and prohibitory injunction were declined. The result was that OS No.220/92 stood dismissed and OS No.652/92 was partly decreed. SA 618/00 5 9. Aggrieved by that portion of the decree, which declined reliefs to him, Raghuvaran preferred AS No.66/94 against the judgment and decree in OS No.652/92. The defendants in the said suit filed a cross appeal also. The lower appellate court on a re-evaluation of the evidence, came to the conclusion that the finding of the trial court that Ext.B1 is valid, binding and is justified and cannot be interfered with. The lower appellant court then went on to consider the prayer for mandatory injunction and came to the conclusion that appellants occupied the building in the premises in the status of licensees only and the very institution of the suit itself is sufficient notice of termination of the licence. They had no independent right to occupy the building and therefore, the lower appellate court granted the prayer for mandatory injunction also. 10. Aggrieved by the said portion fo the judgment and decree, the present second appeal as have been filed. SA 618/00 6 11. Notice is seen issued on the following question of law raised in the second appeal : Is the decree passed by the lower appellate court granting mandatory injunction valid in so far as the lower appellate court was granting mandatory injunction even without examining as to whether the conditions necessary for granting mandatory injunction are made out in this case? 12. The learned counsel for the appellant pointed out that the lower appellate court was not justified in granting mandatory injunction directing the appellants to vacate the premises and hand over the same to the plaintiff in OS No.652/92. According to the learned counsel, the pleading regarding licence arrangement and its termination are found wanting in the plaint in O No.652/92 and there is also no evidence regarding the licence arrangement regarding the plaintiff and the appellant. At any rate, there was no notice terminating the licence arrangement between the plaintiff and the defendants. These facts have been omitted to be noticed by the lower appellate court. SA 618/00 7 The learned counsel also pointed out that eversince their marriage in 1982, the appellants have been residing in the building in the suit property and it could not be said that they were in occupation of the building on the basis of a licence arrangement. According to the learned counsel, the trial court was fully justified in declining to grant the relief of mandatory injunction. 13. Per contra, the learned counsel for the respondents pointed out that the evidence would clearly show that after the marriage, the appellant was allowed to reside in the building as per the permission granted by Kunjulekshmi, the mother of Soudamini and Ramani and she was residing with them. It was during that time that Ext.B1 was executed and possession was handed over to the plaintiff. The residence of the appellants in the building can, therefore, be treated only as licensee and she cannot occupy any other status. The evidence adduced by the plaintiff in OS No.220/92 would clearly show that they were in permissive occupation of the building. If that be so, the SA 618/00 8 grant of the relief by the lower appellate court is fully justified. 14. The only question, therefore, which arises for consideration is whether the lower appellate court was justified in granting mandatory injunction directing the appellant to vacate the premises and hand over possession to the plaintiff in OS No.652/92. 15. May be that the appellant has been residing in the building in the suit property from the date of her marriage in 1982. But the evidence discussed by both courts below clearly show that that was on a permission granted by Kunjulekshmi, the mother of the two sisters, namely Soudamini and Ramani. The evidence would show that Raghuvaran and Ramani were residing elsewhere. However, Ext.B1 clearly shows that pursuant to the sale deed, possession of the property was handed over to Raghuvaran. SA 618/00 9 16. One cannot omit to note that the mother was residing with the appellants. So, even after Ext.B1 was executed, both the courts below have found that the oral evidence adduced by the plaintiff in OS No.220/92 unambiguously show that she was residing with the mother as directed by her. Probably, it could be said that with the execution of Ext.B1, the said permission came to an end, but the appellants have no case that thereafter, their status changed and if that be so, their continued occupation of the building can only be treated to be permissive in nature. They have no case that they are trespassers and are in occupation of the building in that capacity. 17. As rightly noticed by the lower appellate court, the very institution of the suit, pointing out that the plaintiff in OS No.652/92 does not wish to continue the licence arrangement and that he wants the defendant in that suit to vacate the premises, is sufficient notice for termination of the licence. The trial court was not justified SA 618/00 10 in declining to grant the relief of injunction on the ground that the date on which licence was terminated, is not seen pleaded. The trial court omitted to note that the plaint in OS No.652/92 shows that the defendant therein was alleged to be in occupation of the building on a permissive basis and the plaintiff did not wish to continue the licence arrangement so given to the defendant, under which they were in occupation. 18. The lower appellate court was fully justified in its approach and coming to the conclusion that the plaintiff in OS no.652/92 is entitled to the prayer for mandatory injunction also. 19. The result is that the finding of the lower appellate court and the trial court are based on appreciation fo evidence in the case and are pure questions of fact. No substantial question of law arises for consideration in this second appeal. The second appeal is without any merits and ti is accordingly dismissed. No order as to costs. However, the appellant is given six months' SA 618/00 11 time from today to vacate the premises provided they file an undertaking before the trial court to unconditionally vacate the premises on or before the expiry of six months from today. P.Bhavadasan, Judge. sta