IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 RSA.No. 643 of 2011() ------------------------------- AS.128/2008 of IST ADDL.SUB COURT, KOZHIKODE OS.204/2007 of ADDL.MUNSIFF COURT,KOZHIKODE-I .................... APPELLANT/ APPELLANT/2ND DEFENDANT: -------------------------------------------- EDAVANA MEETHAL HARIDASAN, AGED 62 YEARS, S/O.UNICHYOI, MERCHANT, EAST HILL, P.O.WEST HILL, KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT(S):RESPONDENTS/ PLAINTIFFS AND DEFENDANTS 1 & 3: ------------------------------------------------------------------------------------------------------- 1. MARIYAM, AGED 58 YEARS, D/O.ABOOBACKER HAJI, PADINHARE VEEDU, DOMESTIC AFFAIRS, NEDUNGOTTUR, KOZHIKODE. 2. AMINA, AGED 55 YEARS, D/O.ABOOBACKER HAJI, DOMESTIC AFFAIRS, PADINHARE VEEDU, NEDUNGOTTUR, KOZHIKODE. 3. ABDUL NAZAR, AGED 53 YEARS, S/O.ABOOBACKER HAJI, MERCHANT, PADINHARE VEEDU, NEDUNGOTTUR, KOZHIKODE. 4. SULAIKHA, AGED 49 YEARS, D/O.ABOOBACKER HAJI, PADINHARE VEEDU, NEDUNGOTTUR, KOZHIKODE. 5. MUNTHAZ, AGED 47 YEARS, D/O.ABOOBACKER HAJI, DOMESTIC AFFAIRS, PADINHARE VEEDU, NEDUNGOTTUR, KOZHIKODE. tss R.S.A. NO.643/2011 6. ABUL MAJEED, AGED 43 YEARS, S/O.ABOOBACKER HAJI, MERCHANT, PADINHARE VEEDU, NEDUNGOTTUR, KOZHIKODE. 7. KANDIYIL MUNEER, AGED 44 YEARS, S/O.ALI, KOOLI, KANNADIKKAL P.O., VENGERI, KOZHIKODE. 8. EDAVANAMEETHIL PRAKASH, AGED 52 YEARS, S/O.UNICHOYI, MERCHANT, EAST HILL, P.O.WEST HILL, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.643 OF 2011 --------------------------------------------- Dated 22nd June, 2011 JUDGMENT Second defendant in O.S.204/2007 on the file of Additional Munsiff Court-I, Kozhikode are the appellants. Plaintiffs 2 to 7 and defendants 1 and 3 are the respondents. Plaintiffs 2 to 7 were impleaded as legal heirs of deceased sole plaintiff. The suit was instituted for prohibitory injunction, mandatory injunction, arrears of license fee, compensation for use and occupation and also recovery of possession, which was subsequently given up at the time of evidence. Respondents/plaintiffs are admittedly owners of the plaint schedule building. Under Ext.B1 license agreement, RSA 643/11 2 dated 11.2.1990 appellant and respondent No.8 (defendant No.1) were permitted to use the plaint schedule building on payment of license fee of Rs.550/- per month. The period was for twenty years. During the subsistence of the said agreement, Ext.A1 license agreement dated 19.9.2000 was entered into by the plaintiff and defendants 1 and 2, fixing the period of license from 1/6/2000 to 30/4/2001 and enhancing the license fee to Rs.1,000/-. After the expiry of period of license, plaintiff instituted R.C.P.24/2006 before Rent Control Court. But even in Ext.A3 counter statement filed by the appellant in that rent control petition, there was no case that they are not licensees but tenants or that it is a rental arrangement. Rent control petition was not persued realising that it is RSA 643/11 3 a license agreement, reserving the right to approach the civil court. The suit was thereafter instituted. First defendant remained ex parte. Appellant resisted the suit contending that Ext.A1 license agreement was vitiated by fraud and was not voluntarily executed. It was contended that plaintiff is not entitled to seek the decree to vacate the premises before the expiry of ten years, the period provided under Ext.B1 license agreement of 1990 and hence the suit is to be dismissed as premature. 2. Learned Munsiff on the evidence of PW1, Exts.A1 to A4, DW1 and Exts.B1 to B4 granted a decree directing the appellants to vacate the plaint schedule building by removing the articles within two months and also to pay Rs.27,000/- being the arrears of license fee RSA 643/11 4 and the damages for use and occupation from 15/1/2007 at the rate of Rs.1,000/- per month. Appellants challenged the judgment before Sub Court, Kozhikode in A.S.128/2008. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. Argument of the learned counsel is that though a relief of recovery of possession was sought for in the plaint, that relief was later given up and mandatory injunction sought for in the plaint is in respect of the movables kept in the building alone and therefore, courts below were not justified in granting a decree directing the RSA 643/11 5 appellant to vacate the plaint schedule building. It is argued that when Ext.B1 agreement entered into by the appellants and the respondents provide for a period of twenty years, respondents are not entitled to seek surrender of the building before expiry of that period and therefore the suit is not maintainable and hence the decree is to be set aside. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though respondents originally instituted R.C.P.24/2006, it was later closed with liberty to the plaintiff to approach the civil court, realising that appellant and first defendant are not tenants, as defined under Kerala Buildings (Lease and Rent Control) Act. Even in Ext.A3 statement RSA 643/11 6 filed by the appellant before the Rent Controller, there was no plea that agreement creates a lease. Even in the suit appellant did not contend that they are tenants or it is a lease. When admittedly they are licensees, in law they cannot claim exclusive possession of the building. It is in such circumstances, appellants did not seek a decree for recovery of possession at the time of evidence. Being the licensees appellant need only remove the articles from plaint schedule building. In such circumstances, the decree granted by the courts below cannot be challenged on the ground that a decree for recovery of possession was not pressed at the time of evidence. Decree granted was a direction to the appellants to vacate the building by removing their articles kept in the plaint RSA 643/11 7 schedule building. 6. The only question is whether the suit is premature as claimed by the appellants. Though appellants raised a contention that Ext.A1 is vitiated by fraud, the burden is definitely on the appellants to establish the plea of fraud. On the evidence, both the courts below rightly found that allegations of fraud were not established. If that be so, Ext.A1 is valid. Even though Ext.B1 provides for a period of twenty years, when Ext.A1 was executed subsequently before expiry of the said period and the relationship of the parties stand modified by the terms and conditions provided in Ext.A1. If that be so, based on Ext.B1 terms, appellants cannot contend that the suit is premature, as terms provided in Ext.B1 license arrangement was altered and modified by RSA 643/11 8 execution of Ext.A1 and the period fixed under Ext.A1, expired before the institution of the suit. Appeal is dismissed. Learned counsel then submitted that appellants may be granted time to vacate the building submitting that they are engaged in gold covering work. The suit was instituted in 2007 and decree was granted by the trial court in 2008, which was confirmed on 18/3/2011. In such circumstances, I do not find any justification for granting further time as sought for. Still in the interest of justice, if the appellant files an affidavit before the trial court unconditionally undertaking to vacate the building after removing the articles within three months from today, they shall not be evicted, provided an affidavit to that effect RSA 643/11 9 is filed within ten days from today and the entire arrears of license fee as found by the trial court is deposited along with the affidavit. M.SASIDHARAN NAMBIAR, JUDGE. uj.