IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 SA.No. 587 of 2000(C) --------------------- AS.274/1997 of 1 ADDL.DISTRICT COURT, KOZHIKODE OS.588/1991 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER/APPELLANT: ------------------------------------- PAROLI SUNDER DAS, S/O.LATE KRISHNAN, PARTNER KRISHNA SONS, 9/651, BIG BAZAR, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE RESPONDENT/RESPONDENT: ------------------------------------------- K.KARTHIAYANI AMMA, D/O.GOVINDAN NAIR, 9/585, VALIYA VEEDU PARAMBA, CHEROOTTY ROAD, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SMT.PREETHY KARUNAKARAN SRI.P.A..HARISH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/ 05 /2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 587 of 2000(C) ------------------------------ ORDER ON CMP.1498/2000 IN SA587/2000 DISMISSED 30.5.2011 Sd/- P.BHAVADASAN, JUDGE / TRUE COPY / P.A. TO JUDGE, VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 587 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of May, 2011. JUDGMENT The defendant, who suffered a decree at the hands of the lower appellate court before the Sub Court, Kozhikode is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The defendant was put in occupation of the plaint schedule premises, according to the plaintiff, on the basis of Ext.A1 licence. Ext.A1 was periodically renewed and according to the plaintiff the period of licence expired on 18.10.1991 and then the plaintiff asked the defendant to vacate the premises. The defendant did not heed to the demand. Therefore the suit was laid. 3. The defendant resisted the suit by pointing out that he was in possession of the property on the S.A.587/2000. 2 basis of a lease agreement and not on the basis of a licence. Though styled as a licence it was infact a lease and it periodically renewed and the rent was also enhanced. It was further contended that fresh agreement was executed on 11.10.1991 for a period of three years and since that has not expired the suit is not maintainable. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and and documents marked as Exts.A1 to A45 from the side of the plaintiff. The defendant examined D.Ws. 1 and 2 and documents marked as Exts.B1 to B9. Exts.C1 and C1(a) are the commission report and plan. The trial court found that the agreement is a licence arrangement, but found that the suit was premature and hence the suit was dismissed. 5. The plaintiff carried the matter in appeal as A.S.274 of 1997 and the defendant filed a cross appeal. The lower appellate court on an elaborate consideration of the materials found that the arrangement under which the S.A.587/2000. 3 defendant was put in occupation was only a licence arrangement and also found that Ext.B8 has not been proved in accordance with law and therefore the suit cannot be said to be premature at all. Accordingly the judgment and decree of the trial court was reversed and a decree for mandatory injunction was granted. 6. Notice is seen issued on the following questions of law: “1. Whether the finding of the courts below that the relationship of plaintiff and defendant as licensor and licensee is correct fro the facts of the case and the law applicable. 2. Whether the finding of the lower appellate court that the agreement of 91 is not genuine for lack of sufficient evidence is justifiable. 3. Whether the civil court has jurisdiction to try the suit. 4. If the agreement of 91 is genuine whether the suit filed before the expiry of period of licence is maintainable.” S.A.587/2000. 4 7. Learned counsel appearing for the appellant very vehemently argued that the finding of the lower appellate court is unjustified in law and it should have confirmed the judgment and decree of the trial court. 8. Learned counsel appearing for the respondent has pointed out that in execution of the decree the respondent had taken possession of the premises and nothing remains to be considered in this appeal. 9. Whatever that be, the lower appellate court has elaborately considered the materials available in the case and found that Ext.B8 is not proved in accordance with law. Since it is accepted by the learned counsel for the appellant that premises have been taken possession of by the respondent in execution of the decree as granted by the lower appellate court, nothing remains to be considered in this appeal. No question of law arises for consideration in this Second Appeal. The second appeal is without any merits S.A.587/2000. 5 and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.