Kerala High Court
Karunagappally Coir Vyvasaya … vs Sankaran Namboothiri Ramachandran … on 18 December, 2024
SA No. 461 of 2001
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 18TH DAY OF DECEMBER 2024 / 27TH AGRAHAYANA, 1946
SA NO. 461 OF 2001
AGAINST THE JUDGMENT&DECREE DATED 02.11.2000 IN AS NO.89 OF 1995 OF
DISTRICT COURT,KOLLAM ARISING OUT OF THE JUDGMENT&DECREE DATED 09.01.1995
IN OS NO.377 OF 1985 OF MUNSIFF COURT, KARUNAGAPPALLY
APPELLANT/RESPONDENT NO.1/DEFENDANT NO.1:
KARUNAGAPPALLY COIR VYAVASAYA CO-OPERATIVE
SOCIETY LTD. NO. 3067,
CLAPPANA.P.O., KULASEKHARAPURAM VILLAGE, REPRESENTED BY ITS
PRESIDENT.
BY ADVS.
G.UNNIKRISHNAN
P.V.RAMESH SHANKAR
G.P.SHINOD
RESPONDENTS/APPELLANTS 1 AND 2, RESPONDENTS 2,4 TO 6:-RESPONDENT NO.3
DIED, NO LEGAL REPRESENTATION )/PLAINTIFFS 1 & 2, DEFENDANTS 2, 4 TO 6:
1 SANKARAN NAMBOOTHIRI RAMACHANDRAN NAMBOODIRI,
VADASSERI ILLAM, CLAPPANA SOUTH MURI,PERINADU VILLAGE,(NOW
CLAPPANA VILLAGE) ALSO NAMED AS VADASSERI
ILLAM,KOTTACKUPURAM MURI,KULASEKHARAPURAM VILLAGE
2 SANKARAN NAMBOOTHIRI AMPADI,
OF -DO- -DO-
3 MADHAVAN VASU,
KOCHUNETTOOR VEEDU,CLAPPANA SOUTH MURI,CLAPPANA VILLAGE.
SA No. 461 of 2001
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4 SATHEESAN,(DELETED)
VAZHAPARAMBIL VEEDU,PARAYAKADAVUTHURA,CLAPPANA VILLAGE.
(RESPONDENT NO.4 IS DELETED FROM THE PARTY ARRAY AT THE RISK
OF THE APPELLANT AS PER ORDER DATED 05.07.2023 IN IA.1/2020)
5 KUMARAN VASAVAN,
MEENATHERI VEEDU,KALLELIBHAGAM MURI,THODIYOOR VILLAGE.
6 P.J.DEVASSY CARDOZ,
PATTASSERI VEEDU,KOTTAKKUPURAM MURI,KULASEKHARAPURAM
VILLAGE.
BY ADVS.
R1 AND R2 BY ADV. SMT.ASHA JYOTHY
SRI B.KRISHNA MANI
SRI V.PREMCHAND
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2024, THE COURT
ON 18.12.2024 DELIVERED THE FOLLOWING:
SA No. 461 of 2001
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CR
JUDGMENT
1. The appellant is the 1st defendant in O.S.No. 377/1985 of the
Munsiffs Court, Karunagappally. The suit was for a mandatory
injunction to handover the plaint schedule property after
demolishing the building therein after finding that the 1st defendant
has only licence over the plaint schedule property for recovery of
arrears of rent and notice charges of Rs.135/- and future ground
rent at the rate of Rs.400/- per annum. The plaint schedule
property is 6 cents of land in Sy. 458/A.B of Kulasekharapuram
village and the building situated therein.
2. The plaintiffs are two brothers who derived the plaint schedule
property from their mother, Lakshmi Antharjanam. The main
averments in the plaint are to the effect that the dilapidated
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building in the plaint schedule property was sold to one Adv.
Sivarama Panicker as per Ext.A1 Sale Deed dt. 10.08.1955
agreeing that the said Sivarama Panicker is free to either repair
and continue to use the building or to reconstruct the same, and
in case he continues to use the building after repairing, the plaint
schedule property is given on ground rent for a period of three
years @ Rs.55/- per annum to Lakshmi Antharjanam. Sivarama
Panicker repaired the dilapidated building to its present condition.
Sivarama Panicker sold his rights to the 1st defendant as per
Ext.B1 document dt 26.03.1962. The defendants 2 to 6 are the
tenants of the 1st defendant. Since the plaint schedule property
was given to Sivarama Panicker, who was an Advocate, it is not
for an industrial purpose, and hence, the 1st defendant, as his
assignee, is not entitled to get any benefits under the Kerala Land
Reforms Act. As per Ext.A1 Adv. Sivarama Panicker was given
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only a licence over the plaint schedule property for a period of
three years.
3. The defendants 1, 2, 3, and 4 filed separate Written Statements
opposing the suit prayers. The principal contention raised by the
defendants was that the arrangement, as per Ext.A1, is a lease.
Sivarama Panicker completed the construction of the building in
the plaint schedule property, and he had been running a textile
shop and other business establishments in the building. The 1st
defendant is entitled to get fixity of tenure under S.106 of the
Kerala Land Reforms Act.
4. The Trial Court framed the issues (1) Whether Ext.A1 Sale deed
is really a lease deed as alleged by the defendants? (2) Whether
the defendants got the assignment of all the rights in Ext.A1? (3)
Whether Sivarama Panicker was a licensee of the plaint schedule
property? and (4) Whether the defendants are entitled to get
protection under S. 106 of the Kerala Land Reforms Act?.
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5. The claim with respect to fixity of tenure under S. 106 of the Kerala
Land Reforms Act was referred to the Land Tribunal Kollam and
the Land Tribunal by its order dt. 07.06.1994 found that the
defendants are not entitled to the benefits under S. 106 of the
Kerala Land Reforms Act.
6. The 1st plaintiff was examined as PW1, the Secretary of the 1st
defendant is examined as DW1. On the side of the plaintiff
Exts.A1 to A6 were marked and on the side of the defendants
Ext.B1 was marked.
7. The Trial Court dismissed the suit holding that Ext.A1 is in the
nature of a lease deed and not a licence deed as claimed by the
plaintiffs and that the defendants got assignment of all rights
under Ext.A1.
8. The plaintiffs filed A.S.No. 89/1995 before the First Appellate
Court and the said Appeal was allowed setting aside the judgment
and decree passed by the Trial Court and allowing recovery of
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possession of the plaint schedule property and the building on
payment of value of improvements to the 1st defendant to be fixed
in the execution proceedings, declaring that the plaintiffs are
entitled to realise ground rent at the rate of Rs.55/- per annum for
three years prior to the filing of the suit and till the date of the
judgment of the Appellate Court and at the rate of Rs.400/- per
annum from the date of the Appellate Court judgment till
realisation holding that Ext.A1 is a composite document
consisting of sale in the case of building and lease in the case of
property; that the 1stdefendant is not entitled to get protection
under S. 106 of the KLR Act; that the purpose stated in Ext.A1 is
not commercial or industrial, the nature of new construction made
by Sivarama Panicker in the plaint schedule property is not
proved; that the plaintiff is liable to pay value of improvements
which has to be assessed in the execution proceedings.
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9. This Regular Second Appeal was admitted on 11.06.2001 without
formulating any Substantial question of law. Hence, I formulated
the following substantial question of law in this Second Appeal.
. Whether the First Appellate Court is justified in holding
that Ext.A1 document is a lease?
. Whether the First defendant is entitled to the fixity of
tenure under S.106 of the KLR Act?
. Whether the First Appellate Court is justified in allowing
recovery of possession of the plaint schedule property in
favour of the plaintiffs?
10. I heard the learned Counsel for the appellant Sri.G.P.Shinod and
the learned Counsel for respondents 1 and 2 Sri. B.
Krishanamani.
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Question Of Law No.1
11. The specific case of the plaintiffs in the plaint is that Ext.A1 is a
license, whereas the defendants contended that it is a lease. The
First Appellate Court found that Ext.A1 is a lease and that Sivarama
Panicker and the 1st defendant are lessees. The contention of the
counsel for the appellant is that the plaintiffs have not challenged
this finding of the First Appellate Court either by filing a Regular
appeal or by filing a Cross Objection. I am unable to accept such a
contention. In view of Order 41 Rule 22 CPC, any respondent,
though he may not have appealed from any part of the decree, may
not only support the decree, but also state that the finding against
him in the Court below in respect of any issue ought to have been
in his favour. CPC does not permit the filing of an appeal against
a finding. Only a person aggrieved by the decree can file an
appeal. It is well settled by the decisions of the
Hon’ble Court in Smt.Ganga Bhai V. Vijayakumar and others
[(1974) 2 SCC 393] and Bansari and Others V. Ramphal
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[ (2003) 9 SCC 606] that no appeal will lie against mere finding
for the simple reason that the Code does not provide for any such
appeal and that unless a person is prejudicially or adversely
affected by the decree, he is not entitled to file an appeal. Hence,
the contesting respondents are perfectly justified in advancing
contentions against the finding of the First Appellate Court in view
of Order 41 Rule 22 CPC, even though they did not file an appeal.
12. The learned Counsel for the appellant contended that Ext.A1 is a
composite document in which the sale of the old, dilapidated
building for Rs.3,00/- and the lease of the landed property for a
ground rent of Rs.55/- per annum are included and hence it could
not be construed as a license. On the other hand, the learned
Counsel for the contesting respondents contended that Ext.A1 is
a license as only permission to occupy the land alone granted with
the right to retain either the existing construction or to make a new
construction. The Counsel for the contesting respondents cited
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the Full Bench decision of this Court in Velayudhan Vivekanadan
V. Ayyappan Sadasivan [1975 KLT 1] to substantiate that the
document must be read as a whole and in its entirety, giving due
weight to every term in it and the nomenclature of the document
keeping in mind the surrounding circumstances. The learned
counsel for the appellant cited the decision of this Court in
Sivaprasad & Others V. Karthiyayani @ Kathu & Others
[2018(4) KLT 1193] to substantiate the point that the schedule
description in a document only for the purpose of identification of
the property and much weight should not be given to the same
while interpreting the document. I am of the view that the
documents must be read as a whole in order to understand the
real intention of the parties. The importance of each and every
clause while interpreting the document depends upon the facts
and circumstances of each case. When exclusive possession is
given without reserving any control with the transferor, the
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arrangement is the lease and not a license. When control is
reserved in the hands of the transferor while permitting occupation
of the property, there is no transfer of interest so as to attract a
lease, and in such cases, it can only be a license. In the case of
a license, the legal possession of the land remains with the
licensor. The terminology used in the document on the basis of
which the arrangement started is indicative to decide the nature
of the arrangement, though it is not conclusive. On going through
the recitals in Ext.A1, it was found that the exclusive possession
of the property was given to Sivarama Panicker as per Ext.A1. It
is specifically stated that the land is entrusted on a lease, and the
consideration is rent. In the plaint also, the amount payable by the
1st defendant is stated as ‘Tharappattom,” which means ground
rent. No control is reserved in favour of the land owner in Ext.A1.
It indicates that Ext.A1 is a lease and not a license. The Question
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of law No.1 is answered in the affirmative and in favour of the
appellant.
Question of Law No.2
13. The contention of the learned Counsel for the appellant is that the
sale of the dilapidated building situated in the plaint schedule
property and the lease of the plaint schedule property are distinct
and separate in Ext.A1. With respect to land, the lease is given,
allowing him to put up constructions either by repairing the shops
sold to him or by constructing a new one. In either case, the
construction is made by the lessee on a vacant land leased to him.
Ext.A1 itself would show that the nature of construction in the
plaint schedule property was shop rooms. It is in evidence that
Sivarama Panicker constructed shop rooms, and he had been
conducting textile business and banking business, though he was
an advocate. Since the lease was given for commercial purposes
and Sivarama Panicker constructed the building for commercial
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purposes before 20.05.1967, the lessee is entitled to get a fixity
of tenure. The learned Counsel cited the decision of this Court in
Idreesu Kunju Shawkath Ali v. Nafeesa Beevi [1973 KLT 808],
in which it is held that a lessee is entitled to get protection under
S.106 of the KLR Act if the lessee had obtained a lease to
construct a shop on the foundation which was in existence at the
time of the lease in the plaint schedule property which belonged
to the landlord.
14. It is true that the purpose of the lease was for commercial purpose
as defined under Section 2(5) of the KLR Act. The oral evidence
of Pws 1 to 4 and Exts.A2, A3, A6, and A7 produced before the
Land Tribunal proves that Sivarama Panicker had been
conducting textile business in the plaint schedule property. In
Ext.A1 itself, it is evident that the nature of constructions therein
are shop rooms. Hence, I am of the view that the lease as per
Ext.A1 was for commercial purpose.
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15. But as rightly contended by the learned counsel for the contesting
respondents, what is entrusted to Sivarama Panicker is not land
alone but land with building thereon. Learned Counsel took me to
the Schedule of Ext.A1 in which both land of 6 ½ cents and the
building therein are stated. The heading of the schedule is shown
as ‘Details of the shop.’ As per the terms of Ext.A1, it is the
scheduled property, which is to be surrendered, which includes
buildings also. It is clear from Ext.A1 that the existing dilapidated
shop rooms are given to Sivarama Panicker for a consideration of
Rs.3,00/- allowing him either to repair and continue the said
building or to construct another building after removing the
existing building. Admittedly, a building was situated in the
property at the time of execution of Ext.A1. In the Schedule to
Ext.A1 also, land and the building therein are included. It is
specifically provided in Ext.A1 that after the expiry of the period
prescribed in Ext.A1, Sivarama Panicker has to vacate the
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scheduled property, which includes land and building and not land
alone. When there exists a building on the leased land, the lessee
is not entitled to get protection under S.106 of the KLR Act. It is
immaterial whether the lessee is given the right to demolish the
existing construction and to construct a new one or not. The fact
that the existing building was sold to the lessee for the purpose of
demolition is irrelevant while considering a claim of the lessee for
protection under S.106 of the KLR Act. It is well settled by the
decision this Court in Jacob V Joseph [1987(1) KLT SN 7 (Case
No.16)] cited by the learned Counsel for the contesting
respondents that a lessee of land and building cannot claim
protection under S.106 of the KLR Act and that leases of land
alone satisfying the requirement of the 106 of KLR Act will come
within the purview of that Section for the purpose of enabling the
lessee to claim immunity from eviction. Hence, I am of the view
that the defendants are not entitled to get the benefit under
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Section 106 of the KLR Act and the Land Tribunal rightly found
that the defendants are not entitled to get fixity of tenure. The
Question of Law No.2 is answered in the negative and in favour
of the contesting respondents.
Question of Law No.3
16. The suit as framed is for the relief of mandatory injunction after
entering a finding that the arrangement is license. When a prayer
is made to enter a finding that the arrangement is license, it is in
the nature of a declaratory relief. In such cases, the plaintiff has
to pay court fees under Section 25 of the Kerala Court Fees and
Suit Valuation Act,1959. The plaintiffs have not paid court fees
under Section 25.
17. I have already found that the arrangement is a lease. Then, the
question is whether a suit for mandatory injunction is maintainable
to evict a lessee from the leased premises. It is settled law by the
decisions of the Hon’ble Supreme Court in Associated Hotels of
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India Ltd. v. R.N. Kapoor [AIR 1959 SC 1262] and ICICI v. State
of Maharashtra & Ors. [(1999) 5 SCC 708] that in the case of
lease, an interest in favour of the lessee is created and in the case
of license, no such interest is created. In the case of a license, the
licensee is only in a permissive occupation and not in legal
possession, and the legal possession is always with the licensor.
A person who is in legal possession of land cannot be evicted
through a suit for mandatory injunction, and such a person can be
evicted only through a properly framed suit for recovery of
possession. In the case of a license, the licensee can be evicted
through a mandatory injunction as he does not have legal
possession over the land. In the case of a lease, the lessee is in
legal possession of the land, and he can be evicted only through
a suit for recovery of possession of the leased premises. The
nature and character of a suit for recovery of possession and a
suit for mandatory eviction are entirely different. The court fee
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payable is also different. The relief of recovery of possession shall
not be granted in a suit for mandatory injunction. The First
Appellate Court acted illegally in granting the relief of recovery of
possession in favour of the plaintiffs in a suit for mandatory
injunction after holding that the arrangement between the parties
is a lease. The suit for mandatory injunction filed by the plaintiffs
is liable to be dismissed as the arrangement between the parties
is a lease.
18. The learned counsel for the contesting respondents contended
that this Court has ample power under Order 7 Rule 7 CPC to
mould reliefs when it is found that the continuation of the
defendants in the premises is unjustified and the relief could not
be granted for want of proper prayer. The learned Counsel cited
the decision of the Patna High Court in Kashi Choudhary V.
Mujataba Hassan & Others [AIR 1982 Patna 42] to substantiate,
in which it was held that all that R.8 of O.7 of Civil P.C. provides
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is that the plaintiff should state the grounds on which he seeks
relief; that it does not mean that equitable relief under O.7, R.7
cannot be given if all the grounds are not mentioned, otherwise,
there will be no scope for the Court to grant equitable relief. The
learned Counsel cited the decision of this Court in George V.
John [1984 KLT 179] and argued that since the plaintiffs had filed
the suit within a reasonable time before the licensee became a
trespasser, the licensee’s occupation did not become hostile
possession necessitating suit for recovery of possession. The
learned Counsel contended that the present suit is of the year
1985, and hence, it is highly unjust to direct the plaintiffs to file a
new suit for recovery of possession.
19. The learned Counsel for the appellant cited the decision of the
Hon’ble Supreme Court in Shyam Narayan Prasad v. Krishna
Prasad and others [2018 (7) SCC 646] in which it is held that no
relief can be granted to a party without pleadings as pleading are
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meant to give each side, intimation of the case of the other for that
it may be met to enable the courts to determine what is really at
issue between the parties.
20. The learned Counsel for the appellant cited the decision of this
court in Anil Kumar.K. v.Ajith Kumar and Others [2012(4) KLT
545] in which it is held only in exceptional circumstances the
plaintiff is entitled to get reliefs which are not prayed for and that
an exceptional circumstance would arise if among others, the
following conditions are satisfied: (1) when the claim had been
admitted by the defendant (2) no injustice could possibly result to
the defendant by granting such relief (3) the relief was one which
the plaintiff could have made.
21. Long pendency of the suit alone would not justify this Court to
mould and grant reliefs to the plaintiffs. A new relief of recovery of
possession could not be moulded in a suit where the pleadings
are to the effect that the arrangement between the parties is a
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license. In the case on hand, it is not a case of the absence of
proper prayer alone. The pleadings supporting the prayer of
recovery of possession are conspicuously absent. A new relief of
recovery of possession could not be moulded in view of the
pleadings in the plaint in the present suit. The relief of recovery of
possession is contradictory to the declaratory relief that the
arrangement is license, prayed for by the plaintiffs.
22. In the case of a lease, a suit could not be brought without serving
a Termination Notice as required under Section 106(1) of the
Transfer of Property Act. Ext.A5 is not a Notice of Termination as
required under Section 106 of the Transfer of Property Act. The
learned Counsel for the appellant invited my attention to the
decision of the Hon’ble Supreme Court in Satish Chand Makhan
and others v. Govardhan Das Byas and others[1984 (1) SCC
369] in which it is held that a suit for recovery of possession of the
leased premises is not maintainable without determination of the
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lease by service of notice under S.106 of the Transfer of Property
Act. I am of the view that without proper termination of lease as
per Section 106(1) of the Transfer of Property Act also, the relief
of recovery of possession could not be moulded and granted in a
suit for mandatory injunction. The learned Counsel for the
contesting respondents cited the decision of this Court in Kochu
Krishna Pillai V. Ammalu Ammal [1972 KLT 223] to substantiate
the point that sufficiency of notice under Section 106 of the
Transfer of Property Act could not be raised for the first time in
appeal. The said decision is clearly distinguishable from the facts
of the present case. In the present case, the pleadings of the
plaintiffs are to the effect that the arrangement is license, and
hence, there was no occasion for the defendants to contend that
the lease is not terminated in accordance with Section 106 of the
Transfer of Property Act by issuing Termination Notice.
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23. In Madhu Gupta v. K. T Hassan Koya [2019 (5) KHC 42], cited
by the learned Counsel for the appellant, this Court held that there
are two elements which govern S.39 of the Specific Reliefs Act for
the grant of mandatory injunction – Necessity to prevent breach of
an obligation by the intervention of the court and Such acts should
be capable of enforcement by the Court. This Court held that in
the matter of a decree of eviction or a decree of recovery of
possession, there is no scope of exercising judicial discretion, but
in the case of grant of the mandatory injunction, it should be
amenable to the exercise of judicial discretion. A suit for decree of
eviction and a decree of recovery of possession are separately
dealt with under the Kerala Court Fees and Suit Valuation Act,
1959 on the reason that the areas which govern a relief of
recovery of possession & eviction and mandatory injunction are
different in their very nature. In the present suit, no prayer for
recovery of possession is sought, and no court fee under S. 30 of
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the Kerala Court Fees and Suit Valuation Act is paid. The
pleadings also do not support the prayer for recovery of
possession. If this Court moulds and allows a relief for recovery
of possession, it would, in effect, allowing the plaintiffs to obtain a
relief even without payment of court fees. The moulding of relief
has to be restricted in the absence of payment of court fee for the
same.
24. Even assuming that the arrangement between the parties is a
license, the present suit for mandatory injunction is not
maintainable as there is an unreasonable delay on the part of the
plaintiffs to file the suit for mandatory injunction. It is well settled
that if the licensor does not bring a suit for a mandatory injunction
within a reasonable time, he has to file a suit for recovery of
possession. In the case on hand, the arrangement was for three
years from 10.08.1955 as per Ext.A1, though it is alleged that the
arrangement was terminated as per Ext.A5 Notice dated
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19.07.1984. The plaintiffs could not adduce any evidence to prove
that they have been exercising any control over the plaint
schedule property after the expiry of the alleged license. Hence,
this Court would not be justified in moulding and allowing the relief
of recovery of possession in favour of the plaintiffs. The Question
of law No.3 is answered in the negative and in favour of the
appellant.
25. In the light of the answers to the aforesaid substantial questions
of law, the judgment and decree passed by the First Appellate
Court is unsustainable, and the suit is liable to be dismissed.
Accordingly, this Regular Second Appeal is allowed without costs,
setting aside the judgment and decree passed by the First
Appellate Court and dismissing the suit.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
