IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 SA.No. 52 of 2001(F) -------------------- AS.297/1991 of DISTRICT COURT, PALAKKAD OS.840/1988 of MUNSIFF COURT, PALAKKAD .................... APPELLANT(S)/APPELLANT/1ST DEFENDANT: -------------- KRISHNAN @ KRISHNAMURTHY, S/O.SUBRAMANIA PILLA, RESIDING IN KUTTIPPULLI, AKATHETHARA AMSOM, PALAKKAD TALUK. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 3: --------------- 1. SMT.SOWRI AMMAL, AGRICULTURIST, W/O.LATE SEVUNIYAR KOUNDER, KUTTIPPULLI, AKATHETHARA AMSOM, PALAKKAD TALUK. 2. CHINNADURAI ALIAS KOLANDASWAMY, S/O. LATE SEVUNIYAR KOUNDER, -DO- -DO- 3. MUTHUSWAMY, S/O. LATE SEVUNIYAR KOUNDER, -DO- -DO- ADV. SRI.K.RAMESH FOR R1 TO R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.52 of 2001 -------------------------------------- Dated this the 23rd day of March, 2009. JUDGMENT The substantial questions of law raised for a decision on behalf of the appellant/defendant No.1 are: (i) Can a co-owner in derogation and denying the title of the other co-owners maintain a suit for recovery of possession against a stranger? (ii) When the title of plaintiff is disputed, can plaintiff who is only a co-sharer maintain a suit for recovery without a prayer for declaration of title? (iii) When the court has found there plaintiff and defendant Nos. 2 an 3 are co-sharers and defendant No.2 has entered into an agreement for sale of the property receiving consideration and defendant No.1 continues in possession of part performance of the contract, can recovery of possession be allowed in favour of the plaintiff who is only a co-sharer? (iv) When defendant No.1 claims right under Section 53A of the Transfer of Property Act (for short, “the Act”) and it is proved that there is an agreement and in part performance of the agreement, defendant No.1 continues in possession, is not defendant No.1 entitled to resist recovery on the strength of Section 53A of the Act? SA No.52/2001 2 (v) When an interest over the property is created by Ext.B1 and defendant No.1 has effected works of a permanent nature incurring expenditure, is not the first defendant entitled to resist recovery under Section 60(b) of the Indian Easements Act? (vi) Were the courts below justified in not considering the evidentiary value of Exts.B1, X1 and X1(a) and also the oral evidence let in the case? 2. This Second Appeal arises from the judgment and decree for recovery of possession of the suit property as confirmed by the first appellate court. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 3. Defendant Nos.2 and 3 are children of the plaintiff. Plaintiff sued for a decree of prohibitory injunction alleging that the suit property exclusively belonged to her, she having taken it on lease. Defendant No.1 contended that the property originally belonged to the husband of the plaintiff and father of defendant Nos.2 and 3 and that on his death, it devolved on the plaintiff and defendant Nos.2 and 3. He also contended that at a time when it became impossible for the plaintiff and defendant Nos.2 and 3 to cultivate the said property, it was entrusted to him to reclaim and effect cultivation and accordingly, he reclaimed the property and was effecting cultivation in it. While SA No.52/2001 3 so, defendant No.2 executed Ext.B1, agreement dated 21.11.1988 in favour of defendant No.1 agreeing to sell his one third share in the property to him and received Rs.13,000/- as advance. In view of that contention raised by defendant No.1, plaintiff amended the plaint to incorporate a prayer for recovery of possession on the strength of her title. Replying to that amendment, defendant No.1 contended that he is entitled to be in possession in view of Section 53A of the Act and that at any rate, since acting upon the licence (for reclamation and cultivation) he has made permanent improvements in the property the licence is not revocable under Section 60 of the Indian Easements Act. Learned Munsiff found as against the claim of the plaintiff that she is only a co-owner along with defendant Nos.2 and 3 and that the property was entrusted to defendant No.1 as per a licence to reclaim and effect cultivation for one year and later extended by another year. So far as Ext.B1 is concerned, learned Munsiff observed in paragraph 9 of the judgment that the plaintiff is not a party to Ext.B1, it cannot affect her right to recover possession of the property and as such, defendant No.1 is not entitled to get protection of Section 53A of the Act. Accordingly, a decree for recovery of possession was granted. First appellate court has concurred with that finding and sustained the judgment and decree. It is contended by the learned counsel for appellant/defendant No.1 that the licence under which defendant No.1 effected improvements in the property is revocable under Section 60 of the Indian Easements Act. It is also contended by the learned counsel that at any rate, in view of Ext.B1 plaintiff as a co-owner is SA No.52/2001 4 not entitled to recover possession of the entire property from defendant No.1 who is in possession of the property also pursuant to Ext.B1. Learned counsel referred me to “Mitra on Co-ownership and Partition” - page 163 where the author has stated that “if the defendant claims some interest in the property on the basis of some agreement with other co-sharer or lease granted by other co- sharer the plaintiff co-owner would be granted a decree for joint possession along with defendant”. Learned counsel contended that in the light of the above position of law, courts below went wrong in granting decree for recovery of possession of the entire property from defendant No.1 and at any rate, the courts below ought to have moulded the relief by granting a lesser relief of recovery of possession of the share of the plaintiff and defendant No.3. Learned counsel for plaintiff and defendant Nos.2 and 3 contended that defendant No.1 had filed O.S.No.275 of 1991 against the plaintiff and defendant Nos.2 and 3 for specific performance of Ext.B1, agreement for sale. Plaintiff and defendant Nos.2 and 3 denied the execution of Ext.B1 and that the suit ended in dismissal for default which is under challenge in this Court in appeal. Learned counsel also contended that so far as plaintiff and defendant No.3 are not parties to Ext.B1, plaintiff is entitled to recover possession of the suit property and as Ext.B1 does not create any interest on land. SA No.52/2001 5 4. Though plaintiff approached the court with a claim that she is the absolute owner of the property, the court found that she is a co-owner of the property along with defendant Nos.2 and 3. That finding was not challenged by the plaintiff. It is settled position of law [see Kalyani Amma v. Sankaran Raman (1987 (2) KLT 297) and M/s.India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (AIR 2004 SC 1321)] that even without the junction of other co-owners, one co-owner can maintain a suit for eviction. That is because a co-owner is as good as full owner in respect of every inch of land. In this case the decree granted in favour of the plaintiff is on behalf of herself and defendant Nos.2 and 3. Therefore, it was well within the power of the court to grant such a decree though, defendant Nos.2 and 3 did not figure as co- plaintiffs. That, plaintiff claimed absolute right in the property but the courts below found that she is only a co-owner made no difference as the two other co- owners also are on record and they are not challenging the right of the plaintiff to recover the property. 5. On the question whether the permission granted to defendant No.1 to reclaim and effect cultivation in the property is irrevocable under Section 60 of the Indian Easements Act, learned Munsiff observed from Ext.X1, complaint preferred by the plaintiff against defendant No.1 before the local police that defendant No.1 had effected reclamation of the land but it was found that it is not shown that any work of permanent character as required under Section 60 SA No.52/2001 6 (b) of the Easements Act was done. No commission was taken out by defendant No.1 to show the nature of work he has done. Therefore the courts below were justified in holding that the work done by defendant No.1 is not proved to be of a permanent character attracting Section 60(b) of the Easements Act. There is also no case or evidence that the licence was coupled with a transfer of property making Section 60(a) of the Easements Act applicable. From Ext.X1 it is seen that permission was granted for a period of one year for cultivation and which was extended by another year. If that be so, permission granted to defendant No.1 must have ended by May, 1988 and concededly the suit is filed thereafter. It has been held by this Court in Philomina v. Executive Officer (1987 (2) KLT 89) that when the licence was to expire by efflux of time the licensee cannot claim protection under Section 60. Therefore defendant No.1 is not entitled to claim that the licence in his favour is not revocable. I find no reason to interfere with the finding entered by the courts below in that regard. 6. What remained for consideration is whether on the strength of Ext.B1 defendant No.1 can resist recovery of possession of the property. What the author has stated in 'Mitra on Co-ownership and Partition' referred supra is that in case the defendant has some 'interest' over the land, then recovery of possession as against that interest is not permissible. In this case though defendant Nos.2 and 3 did not contest the suit, it is admitted that they along with SA No.52/2001 7 the plaintiff are contesting the suit filed by defendant No.1 for specific performance of Ext.B1, agreement for sale and that defendant No.2 also has disputed the execution of Ext.B1 in that case. Whether such an agreement was executed by defendant No.2 is a matter required to be decided in that case. Even otherwise, a mere agreement for sale cannot create any interest over the land. Courts below found that since the plaintiff is not a party to Ext.B1, her right to recover possession cannot be stalled. There is little reason to interfere with that finding. The right if any of defendant No.1 based on Ext.B1 is to be worked out in the suit filed by defendant No.1 for specific performance. With the above observation, this appeal is dismissed. No costs. C.M.P.No.613 of 2001 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.52/2001 8 Thomas P.Joseph, J S.A.No.52 of 2001 JUDGMENT 23rd March, 2009.