Narayanikutty @ Ammini vs Kallyanikutty
2021 Latest Caselaw 13898 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
 TUESDAY, THE 6TH DAY OF JULY, 2021 / 15TH ASHADHA, 1943
                    RSA NO. 434 OF 2021
  [AGAINST THE JUDGMENT AND DECREE DTD.16.9.2020 IN AS
    NO.91/2014 OF SUB COURT, OTTAPPALAM ARISING OUT OF
      JUDGMENT AND DECREE DTD.19-09-2014 PASSED IN
 O.S.NO.16/2012 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD]
APPELLANT/APPELLANT/PLAINTIFF:

               NARAYANIKUTTY @ AMMINI,
               AGED 68 YEARS,
               D/O.LATE THACHU EZHUTHACHAN, CHUNDAMPALLIALIL,
               CHETHALLUR AMSOM, DESOM AND POST, MANNARKKAD
               TALUK, PALAKKAD DISTRICT-678 583.
               BY ADV SRI.R.SREEHARI

RESPONDENTS/RESPONDENTS/DEFENDANTS:

    1          KALLYANIKUTTY,
               AGED 71 YEARS,
               D/O.LATE THACHU EZHUTHACHAN, CHUNDAMPALLIALIL,
               CHETHALLU AMSOM, DESOM AND POST, MANNARKKAD
               TALUK, PALAKKAD DISTRICT, PIN-678 583.
    2          ARUN DEV,
               AGED 36 YEARS,
               S/O.KALLYANIKUTTY, CHUNDAMPALLIALIL, CHETHALLUR
               AMSOM, DESOM AND POST, MANNARKKAD TALUK,
               PALAKKAD DISTRICT, PIN-678 583.
    3          VINAYASREE,
               AGED 33 YEARS,
               D/O.KALLYANIKUTTY, ANADABEENA NIVAS,
               (VINAYASREE NILAYAM), CHETHALLUR AMSOM, DESOM
               AND POST, NOW RESIDING AT C/O.KUTTI KRISHNAN,
               MANALUMPURAM, NATTUKKAL POST, THACHANATTUKARA
               AMSOM AND DESOM, MANNARKKAD TALUK, PALAKKAD
               DISTRICT-678 554.
        THIS    REGULAR   SECOND    APPEAL    HAVING    COME   UP   FOR
ADMISSION        ON   01.07.2021,    THE     COURT     ON   06.07.2021
DELIVERED THE FOLLOWING:
 R.S.A.No.434 of 2021

                                 2




                             JUDGMENT

This appeal is directed against the judgment and

decree dated 16.09.2020 passed in A.S.No.91 of 2014 of

Subordinate Judge's Court, Ottappalam (hereinafter referred to

as 'the first appellate court') which arose out of the judgment

and decree dated 19.09.2014 in O.S.No.16 of 2012 of the Court of

the Munsiff-Magistrate, Mannarkkad (hereinafter referred to as

'the trial court').

2. The appellant herein was the plaintiff in O.S.

No.16/2012 and the respondents herein were the defendants

therein. The suit was one for permanent prohibitory injunction.

The parties are hereinafter referred to as 'the plaintiff' and 'the

defendant' according to their status in the trial court.

3. The plaint averments in brief are hereinbelow:-

The plaint schedule property originally belonged to the R.S.A.No.434 of 2021

first defendant and her husband Sreedharan. On 23rd May 1986 ,

the first defendant and her husband Sreedharan borrowed a sum

of Rs.54,000/- from the plaintiff for the construction of a house

in the plaint schedule property and executed an agreement

between the parties. The plaintiff was permitted to reside

therein as per the terms of the agreement. Accordingly, the

plaintiff has been residing therein for the last 25 years openly,

peacefully and without any intervention of the defendants.

There is a stipulation in the agreement that when the plaintiff

desires to change the residence from the plaint schedule

property, the aforesaid amount with interest has to be returned

to the plaintiff to that extent the plaint schedule property is

mortgaged to the plaintiff. Sreedharan, who was one of the

parties to the agreement, is no more. The defendants are the

legal heirs of the deceased Sreedharan. The defendants

threatened the forcible eviction of the plaintiff from the plaint R.S.A.No.434 of 2021

schedule building.

4. The defendants entered appearance and filed

written statement contending that the plaint schedule property

belongs to the first defendant as per assignment deed No.

5572/1979 of the Sub Registrar Office, Mannarkad. They denied

the execution and content of the alleged agreement between the

parties. They also denied the fact that the first defendant

borrowed an amount of Rs.54,000/- as alleged. The signature

shown in the alleged agreement was also denied. It is stated that

there was a property jointly in the name of the plaintiff and the

said Sreedharan as per Document No.2619/1991 of the Sub

Registrar Office, Mannarkkad having an extent of 11½ cents

comprised in Sy.Nos.260/1 and 267/5 of Chethalloor Amsom

and Desom. Subsequently, Sreedharan assigned his half share

having an extent of 5¾ cents as per the release deed No.

4756/1998. In this plot, there is a house having 800 sq.ft, R.S.A.No.434 of 2021

numbered as VI/542A of Thachanattukara Grama Panchayath

and the plaintiff is residing there. Since the plaintiff is not

having any possession over the plaint schedule property, she is

not entitled to get a decree of permanent prohibitory injunction

as prayed for.

5. During the trial of the case, PWs.1 and 2 were

examined on the plaintiff's side and marked Exts.A1 and A2.

DW1 was examined on defendant's side and marked Exts.B1 to

B4. The trial court dismissed the suit. Challenging the judgment

and decree, the plaintiff preferred the first appeal before the first

appellate court. The first appeal was also dismissed.

6. Heard the learned counsel for the appellant

Sri.R.Sreehari and the learned counsel for the respondents.

7. Sri.R.Sreehari, the learned counsel for the

appellant contends that both the courts below are failed in not

considering the recital contained in Ext.A1, which would R.S.A.No.434 of 2021

specifically indicate that the plaint schedule property was

handed over to the plaintiff by the first defendant and her

husband. According to the learned counsel, Ext.A1 is an

irrevocable one as per the specific recital contained therein

regarding the aspect that the plaint schedule property was

handed over to the plaintiff by the defendants. It is contended

that both the trial court and the first appellate court

misconstrued Ext.A1 document and non-suited the claim of the

plaintiff over the plaint schedule building.

8. In a suit for injunction, the material question

arises for consideration is as to whether the plaintiff has been in

possession of the suit property on the date of suit. It is the case

of the plaintiff that the first defendant and her husband

Sreedharan had executed Ext.A1 Lakshyam whereby she was

permitted to reside in the plaint schedule building. According to

her, the first defendant and her husband borrowed an amount of R.S.A.No.434 of 2021

Rs.54,000/- from her for the construction of a house. Primarily,

the plaintiff seeks a decree for injunction against the defendants

on the strength of Ext.A1. The first defendant is admittedly the

true owner of the plaint schedule property. Normally an

injunction restraining the true owner from entering into the

property is not permissible. Here the plaintiff is claiming right

over the property on the strength of Ext.A1.

9. The learned counsel for the appellant contended

that Ext.A1 Lakshyam can be divided into two parts. Firstly

licence coupled with interest and secondly mortgage. Hence it is

submitted that the first appellate court misinterpreted the

provisions under S.60(b) of the Indian Easement Act,1882

whereby the terms of Ext.A1 would render as an irrevocable

licence. Thus, it was argued that the recital contained in Ext.A1

would clearly indicate that there was a transfer of property in

favour of the plaintiff.

R.S.A.No.434 of 2021

10. In this connection, it is pertinent to examine the

nature of Ext.A1 in connection with the residence of the plaintiff

in the plaint schedule property. Ext.A1 creates certain right in

favour of the appellant as well as certain liabilities. As far as the

residence is concerned, it is provided in Ext.A1 that the

defendants had given right of residence with a house therein as

security for payment of a debt.

11. However, the term 'licence' is defined under

Section 52 of the Indian Easement Act, 1882 as follows:-

"52. "License" defined.--Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."

12. The question before this Court is as to whether

the agreement creates any interest in this property. The answer

is an emphatic "no". On the face of it, it is only a permission and R.S.A.No.434 of 2021

does not create any interest in the property. There is no

question of any easement being created. Ext.A1 merely gives a

right by the defendant to use the property as a security for

payment of debt. The right does not either confer an easement

or any interest in the immovable property. Further, Ext.A1 is not

a registered deed in accordance with the Registration Act.

Assuming for the sake of argument, Ext.A1 is a licence deed as

contended by the learned counsel for the appellant, still the

defendant granted licence to the plaintiff without creating any

interest in the immovable property. It cannot, therefore, be said

that the licence is coupled with a transfer of property or that any

such transfer is in force within the meaning of Section 60(a) so

as to make the licence irrevocable.

13. In the plaint, the plaintiff claimed that she was in

possession of the suit property on the date of suit. However, on

cross-examination, she has stated that the plaint schedule R.S.A.No.434 of 2021

property has been in possession of the first defendant. Ext.A2

copy of the ration card is produced to prove the possession of

the plaintiff over the plaint schedule property on the date of suit.

However, Ext.A2 itself would show that it has been cancelled in

the year 2002. Exts.B1 and B2 receipts would show that the

defendant has been paying tax to the plaint schedule property.

Ext.B4 receipt dated 16.11.2011 would show that the defendant

filed an application before the Thachanattukara Grama

Panchayath claiming exclusion of tax as the building is in a

dilapidated condition. When PW1 was cross-examined, he

admitted that for the last one year, she has not been residing in

the plaint schedule building. The recital contained in Ext.A1

does not prove that she was put in possession of the residential

building in the plaint schedule property as a licencee. It is only

recited that for the purpose of construction of the house in the

property owned by the first defendant and her husband, they R.S.A.No.434 of 2021

borrowed Rs.54,000/- from the plaintiff. It appears that Ext.A1

was executed as security for payment of a debt. If there is an

agreement permitting the plaintiff to reside in the building on

payment of Rs.54,000/-, the only right that the grantee would

have is to recover money from the granter. There is no pleading

in the written statement that subsequent to the licence

arrangement, she made any construction in the plaint schedule

property. Ext.A1 indicates that the parties 1 and 2 borrowed

amount for the construction of a house. No evidence was

adduced by the plaintiff to prove that the plaintiff has been in

possession of the suit property on the date of suit. Further,

Ext.A1 is not registered in accordance with law and hence, not

admissible in evidence.

14. Whether the question of law is a substantial one

and whether such question is involved in the case or not would

depend on the facts and circumstances of each case. Apart from R.S.A.No.434 of 2021

Ext.A1, there is nothing on record to show that the plaintiff was

in possession of the suit property on the date of suit. No other

documents are produced to show the same. Ext.A1 is admittedly

an unregistered one. The learned counsel for the appellant

would contend that the same can be used for collateral purpose.

Even if Ext.A1 can be looked into for collateral purpose, still,

there must be some other evidence to show that the plaintiff has

been in possession of the suit property on the date of suit. There

is no evidence to substantiate the same. In the absence of other

material evidence to support the claim of the plaintiff, this Court

is of the view that Ext.A1 unregistered document alone is not

sufficient to hold that the plaintiff has been in possession of the

suit property as alleged by the plaintiff. Hence, a concurrent

finding of fact that the plaintiff has not been in possession of the

suit property on the date of suit is not open to challenge In

second appeal even if the appreciation of evidence is palpably R.S.A.No.434 of 2021

erroneous and the finding of fact is incorrect. Neither of the

substantial questions of law argued by the learned counsel is a

question of law far less a substantial question of law. There was

no controversy before the trial court and the first appellate court

with regard to the interpretation or legal effect of Ext.A1. There

is no erroneous inference of any proved fact.

In view of the foregoing discussion, this second

appeal is dismissed. There will be no order as to costs. Pending

applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE

MBS/