IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 RSA.No. 229 of 2009() --------------------- AS.34/2006 of I ADDL.SUB COURT, KOZHIKODE OS.256/2001 of ADDL.MUNSIFF'S COURT .,KOZHIKODE-II .................... APPELLANT/ APPELLANT/DEFENDANT --------------------------------------- THANIMA PACHAKA SAMBHARANA VITHARANA SAHAKARANA SANGAM, REG.NO.D-2483 REPRESENTED BY ITS SECRETARY, KERALA BHAVAN BUILDING, G.H.ROAD, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN RESPONDENTS/RESPONDENTS/PLAINTIFF 1 AND 2 & L.RS. OF 3RD PLAINTIFF. --------------------- 1. K.P.RATNA SINGH, S/O. K.P.KORUKUTTY RESIDING AT RATNA NIVAS, KURIYAL LINE NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. 2. K.P.TESSY, D/O. K.P.KORUTTY RESIDING AT RATNA NIVAS, KURIYAL LINE NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. 3. K.P.SOBHANA, W/O LATE KORUTTY RESIDING AT RATNA NIVAS, KURIYAL LINE NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. 4. SOFIYA, W/O.BHAGATH SINGH RESIDING AT THIRUSHUKKAL HOUSE, THIRUTHIYAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 5. SHOBHIKA, D/O.BHAGATH SINGH RATNA NIVAS,KALATHINKUNNU AMSOM DESOM,KOZHIKODE MINORS, REPRESENTED BY MOTHER AND GUARDIAN. 6. GOPIKA, D/O. BHAGATH SINGH RATNA NIVAS,KALATHINKUNNU AMSOM DESOM,KOZHIKODE MINORS, REPRESENTED BY MOTHER AND GUARDIAN. ADV. SRI.E.NARAYANAN FOR R1 AND R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.229 OF 2009 --------------------------- DATED THIS THE 20TH DAY OF AUGUST, 2009 JUDGMENT Defendant in O.S.No.256/2001 on the file of the Additional Munsiff's Court-II, Kozhikode is the appellant. This appeal is directed against the judgment and decree in A.S.No.34/2006 on the file of the IInd Additional Sub Court, Kozhikode. The suit was filed for mandatory injunction, arrears of license fee and damages for use and occupation. The trial court decreed the suit. The Appellate Court confirmed the judgment and decree of the trial court. Hence, this Second Appeal. 2. It is the plaintiffs' case that plaint A schedule property along with B schedule movables therein belonged to Korukutty, the father of the plaintiffs. After the death of Korukutty, the legal heirs instituted O.S.No.261/01 for partition of his assets including the plaint schedule properties. In the -2- R.S.A.No.229/2009 preliminary decree passed the court below allowed 1/7 share to the plaintiffs and 1/7 share to their mother. In the final decree stage, the plaintiffs and their mother were appointed as joint Receivers. The appellant was permitted to occupy the plaint schedule property and use B schedule movables under licence agreement in 1997. An amount of Rs.200/- per day was fixed as licence fee. The 3rd item of A schedule was permitted to be used for a monthly fee of Rs.260/-. According to the plaintiffs, the appellant society was only a licensee. The defendant took advantage of the dispute between the mother and the plaintiffs and stopped payment of licence fee. The licence fee was demanded by issuing notice. It is further averred that the licence fees are left in arrears since 19/9/2000. The plaintiffs also claimed the amounts by way of damages for use and occupation from 3-4-2001. 3. In the written statement the defendant admitted that he occupied the premises in 1993 as permitted by the mother of the plaintiffs under an agreement. According to him, the -3- R.S.A.No.229/2009 relationship was that of landlord and tenant, that no amount was due as arrears of licence fee or damages and therefore the plaintiffs are not entitled to the reliefs. 4. Before the trial court PW-1 and DW-1 were examined and Exts.A1 to A9, B1 and B2 were marked. The trial court held that the defendant is in occupation of the property under the licence agreement. The contention of the defendant that he is a tenant was found against and a decree of mandatory injunction was passed directing the appellant to vacate plaint A schedule property along with B schedule movables and to pay an amount of Rs.41,640/- as licence fee arrears with interest and to pay damages for use and occupation. Ext.A1 is the agreement dated 10/6/1997 executed by the mother of the plaintiffs and the defendant. The defendant was permitted to occupy the premises as a licensee by the mother of the plaintiffs in her capacity as a Receiver in the final decree proceedings in O.S.No.261/81. The courts below rightly held that the defendant had only permissive right to use the plaint schedule premises and that its right is only -4- R.S.A.No.229/2009 enjoyment as a licensee under the agreement. The court below noted that the duplicate keys of the building and rooms were retained by the Receiver-mother and she had the right to enter into the premises without notice to the defendant. The defendant also admitted the execution of Ext.A1 agreement. The terms in Ext.A1 make it clear that the arrangement was pending proceedings in the court and the appellant had only permissive right to use the premises and the articles mentioned in the agreement. The court below rightly observed that the licence arrangement could only be a temporary one pending final decree proceedings. Considering the facts and circumstances of the case and the recitals in Ext.A1 the courts below held that the defendant was a licensee and repelled the contention of the defendant that he is the tenant of the premises. In the light of the findings and conclusions arrived at, the courts below held that the defendant was liable to pay damages since the termination of licence and the quantum of damages had been computed in tune with the licence fee paid as per Ext.A1. The Appellate Court also -5- R.S.A.No.229/2009 upheld the judgment and decree of the trial court directing the defendant to pay licence fee and damages. 5. The learned counsel for the appellant/defendant contended that the plaintiffs in the suit have no locus standi to file the suit and that the suit filed by the co-owners without the junction of the other co-owners is not maintainable. It is also contended relying on Ext.B1 and B2 that the plaintiffs have no manner of right of ownership over the plaint schedule property, in view of the decree and sale pursuant to the execution petitions in O.S.No.66, 69, 70, 71 and 72/83. 6. The property in dispute and other items of properties originally belonged to Korukutty is not in dispute. The plaintiffs have got 3/7 shares. K.P. Sobhana who is the wife of Korukutty is entitled to 1/7 share. The remaining 3/7 shares belongs to Narayani, Bharathan and Prabhakaran and they are entitled to get 1/7 shares each over the property belongs to Korukutty. By order dated 1st January, 2008 in the execution applications filed in E.Ps. in five suits referred above, the Sub Court, Kozhikode -6- R.S.A.No.229/2009 held that the 5th respondent Sobhana is entitled to get 1/7 share alone over the petition schedule properties items 1 and 2 and that the plaintiffs in the suit have got 3/7 share each over the petition schedule items 1 and 2. It was further held that since the 5th respondent therein (Sobhana) is entitled to get 1/7 share only, her share alone are liable for sale for realisation of her debt and that the auction purchaser of the share of property of the 5th respondent is entitled to get 1/7 share alone, that the sale of any share in excess of the 1/7 share of the 5th respondent for realisation of the debt of the 5th respondent is not binding on the petitioners and other co-owners of the petition schedule properties. After reaching the above said conclusions, the court below further held that the claim petitions were dismissed without entering into any finding as to the right of the 3rd petitioner in the present claim petition or other claim petitioners over the petition schedule properties. The Sub Court, Kozhikode in the said E.A. held that the lst respondent-Ratna Gandhi- auction purchaser is entitled to get the 1/7 share of the 5th -7- R.S.A.No.229/2009 respondent Sobhana alone as per the sale certificate relied on by him and that the auction purchaser on the strength of sale certificate would become a co-owner of the petition schedule properties along with the petitioners and others. Hence, the lst respondent as the auction purchaser of the share of property of the 5th respondent is entitled to get 1/7 share alone over the petition schedule properties and that the sale of any share in excess of the 1/7 share of the 5th respondent is not binding on the petitioners and the other co-owners of the petition schedule properties. It was held in Ext.B1 order dated 8/11/2000 in E.A.No.409/93 and connected E.As. that the said claim petitions were dismissed without entering into any finding as to the right of the 3rd petitioner in the present claim petition or other claim petitioners over the petition schedule properties and therefore Ext.B1 order cannot operate as res judicata to the present claim petitions. The court below by the very same order dated 1/1/2008 in E.A.No.1314/2001 and other connected cases held that the petitioners are entitled to get the relief and declared that the -8- R.S.A.No.229/2009 petitioners are jointly entitled to get 3/7 share each over the petition schedule items 1 and 2 properties and the 5th respondent is entitled to get 1/7 share and the lst respondent is entitled to get 1/7 share of the 5th respondent as per the sale certificate relied on by him. It is further declared that the lst respondent is not entitled to get actual delivery of possession of the petition schedule properties from the petitioners and other co-owners. 7. The learned counsel for the respondents 1, 2 and 4 to 6 submitted details of the arrears of licence fee and damages for use and occupation for the period from 19/9/2000 to 30/11/2000 and from 30/11/2000 to 13/7/2009 respectively due from the appellant to the respondents 1, 2 and 4 to 6. The details are submitted in the form of a statement dated 13th July, 2009. As per the statement, licence fee for the aforesaid period is worked out at Rs.15,014.00 and for damages for use and occupation for the aforesaid period is worked out at Rs.6,56,040/- totalling to Rs.6,71,054/-. The total amount paid by the appellant is Rs.3,20,380 and the balance amount due from the appellant is -9- R.S.A.No.229/2009 shown as Rs.3,50,674/-. The said amount is due as on 13/7/2009. It is stated that the damages for use and occupation for the subsequent period i.e. from 14/7/2009 are also due. The decree provides for payment of damages for use and occupation from the date of suit till the defendant vacates or is evicted from the building. The appellant is liable to pay the amounts due. The questions of law raised by the appellant are devoid of any merit. I find that there is no scope for invoking jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and it is accordingly dismissed in limine. HARUN-UL-RASHID, Judge. kcv.