IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 RSA.No. 368 of 2008 --------------------------------- AS.428/2005 of I ADDL.DISTRICT COURT, ERNAKULAM OS.418/2003 of III ADDL.M.C.EKM (RENT CONTROL) .................... APPELLANT/APPELLANT/DEFENDANT PAULSON A.J., AGED 52 YEARS SON OF THE LATE A.D.JOHN, HOUSE NO.65/2275, VADUTHALA P.O., ERNAKULAM, REPRESENTED BY GUARDIAN ELSY PAULSON, WIFE OF PAULSON A.J., HOUSE NO.65/2275, (NOW XLVII/371) VADUTHALA P.O. ERNAKULAM. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.S.HUSSAIN SRI.P.K.NIJOY RESPONDENT/RESPONDENT/PLAINTIFF: JOSEPH MARTIN, AGED 41 YEARS SON OF THE LATE AUGUSTINE FERNANDEZ VICTORY HOUSE, LAYAM ROAD, ERNAKULAM. BY ADV. SRI.ABRAHAM JOHN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 368 of 2008 --------------------------- JUDGMENT Counsel for the appellant submits that the submission of the counsel for the respondent that vacant possession of the schedule building was delivered over to the respondent even before closing of courts and that on 21.5.2008 execution petition was, therefore, dismissed recording full satisfaction of the decree is true. 2. However, according to the counsel for the appellant, the question as to whether the appellant/defendant was a mortgagee of the property should have been considered in the light of Exhibit B1. It is also submitted that the courts below have not considered the question of title and ownership of the respondent/plaintiff so as to order mandatory injunction directing the appellant to put the respondent in vacant possession of the scheduled building. The appellant has preferred this appeal assailing the concurrent verdicts of RSA 368/08 2 the courts below in O.S.No.418/03 on the file of the Additional Munsiff's Court, Ernakulam. 3. The respondent/plaintiff filed O.S.No.418/03 aforesaid, inter alia, on the allegation that the scheduled property originally belonged to the late father of the plaintiff, namely, Augustine Fernandez, who purchased the property under sale deed No.2000/82 of Ernakulam Sub Registry Office. There is a building and other improvements in the said property. After the death of Augustine Fernandez, a family settlement was effected and accordingly, the plaint schedule property was set apart to the share of the plaintiff. The defendant is in de facto possession of the plaint scheduled property, as he was put in possession of the property by late Augustine Fernandez as a licensee. This was done for the purpose of enabling the defendant to do some business in the scheduled building for his livelihood. It was so given on licence on the specific understanding that the RSA 368/08 3 defendant would vacate the property on demand. A consolidated sum was received by the said Augustine Fernandez towards licence fee. The defendant is now running a shop for sale of rubber stamps, pads and other accessories in the scheduled building. After the family partition, the plaintiff demanded vacant possession of the scheduled building, but the defendant did not vacate the building and hence a notice was issued through Lawyer on 17.4.2002 terminating the licence arrangement and demanding him to surrender vacant possession of the scheduled building. The defendant, who received the notice, did not issue any reply and did not surrender also vacant possession of the scheduled property. He has no manner of right to remain in the scheduled property any further and on termination of the licence agreement his position is that of a trespasser. His position is illegal and objectionable and the plaintiff is entitled to a mandatory injunction and hence the suit. RSA 368/08 4 4. The appellant resisted the suit by filing a written statement contending that he has no knowledge regarding the family settlement with regard to the assets of late Augustine Fernandez. There is a small dilapidated house in the scheduled property and that was put in possession of the defendant by Augustine Fernandez, the late father of the plaintiff under usufractuory mortgage on 23.11.1989. As the defendant had no residence of his own, he thought of residing in the scheduled building and purchase the same later on paying consideration thereof.The mortgagor, late Augustine Fernandez, also orally agreed to the arrangement. The defendant gave a sum of Rupees fifteen thousand towards mortgage money and the mortgagor received another sum of Rupees fifteen thousand by way of part payment agreeing to sell the scheduled property to the defendant for a sum of Rupees fifty thousand. In the meanwhile, Augustin Fernandez passed away in 1991. Hence, the balance amount RSA 368/08 5 could not be given and sale agreement could not be got executed. The scheduled property was given to the defendant not on the basis of any licence arrangement and there is no understanding to vacate the property on demand. A mortgage money of Rupees fifteen thousand was handed over to the plaintiff's father and another sum of Rupees fifteen thousand was paid towards part of sale consideration. The defendant is doing business in rubber stamps and pads. He is entitled to use the premises for the business as a mortgagee. On account of the dilapidated condition of the building in the property, the defendant had to spend an amount of Rupees forty thousand for effecting repairs on various occasions. The plaintiff also knows the mortgage arrangement between the defendant and his late father. The defendant did not issue any reply to the Lawyer notice, as the scheduled property was given to him under mortgage. There is no question of terminating the licence, as there is no licence RSA 368/08 6 agreement. Until and unless the entire mortgage amount and the additional amounts received by the plaintiff's late father is repaid together with the amounts spent by the defendant for repairs of the building, the defendant has got every right to remain in possession of the property. The suit for mandatory injunction is not maintainable against the defendant and the suit is hit by Section 41(h) of the Specific Relief Act. On the above contentions, the appellant/defendant prayed for dismissal of the suit with costs. 5. On the above pleadings, the trial court raised necessary issues for trial and considering also the evidence adduced at trial, which consisted of oral evidence of PW1 and DW1 and documentary evidence of Exhibits A1 and B1, decreed the suit directing the defendant to surrender vacant possession of the scheduled property and the building after removing all his belongings within a period of three months. RSA 368/08 7 6. The defendant filed A.S.No.428/05 assailing the decree so passed by the trial court. The appellate court, vide judgment dated 9.11.2006, dismissed the said appeal confirming the correctness of the decree and judgment passed by the trial court. Hence, this Regular Second Appeal by the defendant, who lost his contentions concurrently in both the courts below. 7. It is contended before me by the learned counsel for the appellant that Exhibit B1 would show that on 23.11.1989, late father of the plaintiff had received an amount of Rs.2001/- as advance for mortgaging his house and property and that another part payment of Rupees eight thousand was also agreed to be given by 5.12.1989 and otherwise the defendant was to repay the sum of Rs.2001/- before February 1990 and the condition was that Exhibit B1 agreement in that event will be cancelled and further that the endorsement beneath Exhibit B1 would show that further payments were RSA 368/08 8 also made and that therefore, it should have been found that the appellant was a mortgagee of the scheduled property, with whom, the predecessor of the plaintiff had agreed to execute the sale deed in his favour and therefore, a mandatory injunction for evicting him should not have been passed against him by the courts below. It is further contended by him that the courts below should have properly interpreted the intention of the parties in Exhibit B1 agreement and that the suit should not have been decreed in any event, as the plaintiff had not produced any evidence in support of his title and ownership over the scheduled property and the building. 8. The contentions advanced as above by the learned counsel for the appellant is bereft of any merit for the following reasons:- It is the case of the defendant himself that the property originally belonged to Augustine Fernandez, the late father of the plaintiff. He RSA 368/08 9 has pleaded ignorance with respect to the family arrangement where under, the plaintiff has pleaded that he has become the absolute owner of the scheduled property and the building therein . Even though the family arrangement is not produced by the plaintiff, the fact remains that the property originally belonged to Augustin Fernandez, the late father of the plaintiff and hence, the plaintiff by himself will be entitled to maintain a suit as the one filed in the instant case. As regards the contention that the defendant is a mortgagee, apart from Exhibit B1 agreement for receipt of a few amounts from him by the late father of the plaintiff, there is no mortgage executed in relation to the scheduled property in favour of the defendant by the late father of the plaintiff and Exhibit B1 also does not evidence an agreement for sale of the scheduled property to the appellant/ defendant. In the circumstances, there is no substantial question of law to be considered by RSA 368/08 10 this Court in this appeal, as is attempted to be formulated in the appeal memorandum, which in my opinion, is not even questions of law that can be agitated in second appeal. This Regular Second Appeal, therefore, deserves to be dismissed in limine refusing admission. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 30th May, 2008 (K.P.Balachandran, Judge) tkv