Kerala High Court

P.M.Aravindan vs K.P.Udayakumar on 14 June, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
    MONDAY, THE 14TH DAY OF JUNE 2021 / 24TH JYAISHTA, 1943
                      RSA NO.145 OF 2017
 AS 53/2016 ON THE FILE OF THE FIRST ADDITIONAL DISTRICT COURT,
                   KOZHIKODE DTD.5.12.2016
  O.S.No.314/2013 DTD.23.12.2015 ON THE FILE OF THE PRINCIPAL
                 MUNSIFF COURT-II, KOZHIKODE.
APPELLANT/APPELLANT/DEFENDANT:

          P.M.ARAVINDAN
          AGED 52 YEARS, S/O.P.P.R.KURUP, RESIDING AT SARADA
          NILAYAM, CHELAVOOR VILLAGE, MAYANAD DESOM,
          KOZHIKODE TALUK.
          BY ADVS.
          SRI.V.V.SURENDRAN
          SRI.P.A.HARISH


RESPONDENT/RESPONDENT/PLAINTIFF:

          K.P.UDAYAKUMAR,
          AGED 48 YEARS, S/O.KRISHNAPOYILIL BALAKRISHNAN,
          RESIDING AT UDAYA NIVAS, NELLIKODE AMSOM, KOVOOR
          DESOM, KOZHIKODE TALUK, POST MEDICAL COLLEGE,
          KOZHIKODE-673008.
          BY ADVS.
          SRI.S.K.ADHITHYAN
          SMT.KEERTHI S. JYOTHI


THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
31.3.2021, THE COURT ON 14.6.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.145 of 2017


                                    ..2..


                                                               [CR]


                             JUDGMENT

Dated this the 14th day of June, 2021

This R.S.A. is directed against the judgment and

decree in A.S.No.53 of 2016 dated 05.12.2016 on the file

of the first Additional District Court, Kozhikode,

(hereinafter referred to as 'the first appellate court')

confirming the judgment and decree in O.S.No.314/2013

dated 23.12.2015 on the file of the Principal Munsiff's

Court-II, Kozhikode (hereinafter referred to as 'the trial

court'). The defendant, who was directed to vacate the

plaint schedule property by way of a decree for mandatory

injunction, was before the first appellate court. The

plaintiff before the trial court, who was the respondent

before the first appellate court, is the respondent herein.

The parties are hereinafter referred to as the plaintiff and R.S.A.No.145 of 2017

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defendant according to their status in the trial court

unless otherwise stated.

2. The plaintiff claims that the plaint schedule

property originally belonged to one Choyi @ Damodaran

(hereinafter referred to as 'Choyi') from whom he acquired

the property as per assignment deed registered as

document No.4017/2012 of Chevayur Sub Registry dated

10.12.2012. The defendant was a licensee under Choyi as

per agreement dated 30.5.2012, for a monthly license fee

of Rs.2,400/-. A sum of Rs.1,25,000/- was received as

security deposit. The term of licence expired on

30.4.2013. It was further contended that the licence fee is

in arrears from November, 2013. The defendant did not

vacate the plaint schedule property after the expiry of the

period. Hence, the plaintiff issued a notice calling upon the

defendant to vacate the premises. The defendant did not

give any reply to the notice. Hence the plaintiff filed the R.S.A.No.145 of 2017

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suit on 22.5.2013 for a mandatory injunction directing the

defendant to vacate the plaint schedule premises.

3. The defendant filed the written statement

contending that he was put in possession of the property

pursuant to an agreement dated 30.5.2012. It was further

contended that he was in possession and enjoyment of

the property on the basis of an oral lease between him

and Choyi on 01.03.2001 and that he is enjoying the

property as a lessee on the basis of the said oral lease.

The arrangement was later reduced into an agreement. It

was contended that when Choyi required some money, the

defendant had advanced a sum of Rs.3,00,000/- to him

and an agreement was entered into between the

defendant and Choyi on 07.05.2001 whereby he was

permitted to retain the plaint schedule property as a

tenant till he intends to vacate. The monthly rent was

being periodically enhanced. On 30.5.2012, the rent was R.S.A.No.145 of 2017

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enhanced to Rs.2,400/- per month and the defendant

happened to put his signature in a document brought by

Choyi wherein he was made to believe that it was a lease

agreement to enhance rent. The defendant executed the

agreement believing the words of Choyi in view of the

relationship between them. The plaintiff is none other

than the nephew of Choyi who is aware of the

arrangement between the defendant and Choyi. The

arrangement between the defendant and Choyi was

always as a tenant and the receipts issued to the

defendant by Choyi were towards rent paid. The

defendant is conducting stationery business in the plaint

schedule property which is his only source of livelihood.

There are no other suitable buildings available in the

locality for rent. The document allegedly executed in

favour of the plaintiff is a sham document which has not

come into effect. At any rate the plaintiff, who is an R.S.A.No.145 of 2017

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assignee from Choyi, is bound by the terms and conditions

of the entrustment entered into between Choyi and the

defendant. The rent happened to be in arrears because

Choyi did not come to collect the rent. He further

contended that the relationship between the parties is as

landlord and tenant and therefore the suit for mandatory

injunction is not maintainable.

4. During the trial, the plaintiff was examined as

PW1. Exts.A1 to A6 were marked on his side. No oral

evidence was adduced by the defendant. However,

Exts.B1 and B2 were marked on his side.

5. On an appreciation of the materials on record,

the trial court granted a decree for mandatory injunction

directing the defendant to remove his goods and articles

from the plaint schedule building within a period of thirty

days. The defendant preferred an appeal before the first

appellate court. By the judgment and decree in R.S.A.No.145 of 2017

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A.S.No.53/2016, on a re-appreciation of the materials on

record, the first appellate court dismissed the appeal

granting the defendant a month's time to vacate the

premises. Hence, this appeal.

6. When this case came up for admission on

15.2.2017, this Court admitted the appeal on the

following substantial questions of law:-

(i) If it is proved that the defendant is not in possession of the property on the basis of the suit document (Ext.A2) was the courts below justified in granting a decree on the basis of said document?

(ii) Assuming that Ext.A2 is a license agreement, in the absence of a specific recital in the said document that the same is executed after obtaining vacant possession of the property pursuant to previous arrangement, will the previous arrangement revive on the termination of the present arrangement?

7. Sri.V.V.Surendran, the learned counsel for the

appellant contended that the appellant was put in R.S.A.No.145 of 2017

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possession of the plaint schedule property as per the

agreement dated 30.5.2012. It was contended that he

was in possession of the property in the year 2001 on the

basis of the lease arrangement between him and the

former owner of the property, namely, Choyi. According to

the learned counsel, the defendant is a lessee and can be

evicted only in accordance with the provisions

contemplated under the Kerala Building (Lease and Rent

Control) Act, 1965. As far as Ext.A2 agreement is

concerned, it was contended that he happened to execute

the said document on the basis of a misrepresentation on

the part of the former owner of the property that the said

agreement is a renewal agreement to enhance rent. In the

cross-examination, the defendant admitted that he has

been in possession of the suit property since 2001. Thus,

it was contended that the successive licence arrangements

are of no consequences and the trial court erroneously R.S.A.No.145 of 2017

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granted a decree for mandatory injunction directing the

defendant to surrender the plaint schedule property. The

first appellate court confirmed the judgment and decree of

the trial court mechanically, it has been contended.

8. On the other hand, the learned counsel for the

respondent/plaintiff contended that the defendant is in

possession of the property as a licensee in continuation of

his predecessor-in-interest. According to the learned

counsel for the plaintiff, the term of license expired on

30.4.2013 and the plaintiff issued a notice to the

defendant through his Lawyer on 23.4.2013 to vacate the

plaint schedule property. It is his case that the defendant

has not paid the licence fee payable from November, 2012

to April, 2013 whereby he has committed the breach of

terms of contract.

9. Heard Sri.V.V.Surendran, the learned counsel for

the appellant and Sri.S.K.Adhithyan, the learned counsel R.S.A.No.145 of 2017

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for the respondent.

10. The plaint schedule building originally belonged

to one Choyi. PW1 would say that the plaint schedule

building was purchased by him from Choyi by virtue of

Ext.A6 document bearing No.4017/12 of SRO, Chevayoor.

The main contention of the defendant is that Ext.A6 is a

sham document. Consequently, it was contended that

Ext.A6 has not come into effect. In fact, the plaintiff has

not disputed the title of his landlord Choyi. According to

him, he continued as a tenant of the plaint schedule

property under Choyi. Having raised such a contention he

is legally precluded from denying the title of the landlord

as contemplated under Section 116 of the Evidence Act.

No tenant of immovable property, or person claiming

through such tenant, shall, during the continuance of the

tenancy, be permitted to deny that the landlord of such

tenant had, at the beginning of the tenancy, a title to such R.S.A.No.145 of 2017

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immovable property; and no person who came upon any

immovable property by the licence of the person in

possession thereof, shall be permitted to deny that such

person had a title to such possession at the time when

such licence was given. Ext.A6 document by Choyi in

favour of the plaintiff is not disputed by the defendant.

Even though the defendant contended that Ext.A6 cannot

be acted upon, no reliable evidence was adduced to

support the same. Hence, the trial court and the first

appellate court rightly entered a finding that the plaintiff is

the owner of the plaint schedule building.

11. The main contention of the defendant is that he

is a lessee of the plaint schedule shop room by virtue of

Ext.A2 licence agreement entered into between the

predecessor-in-interest and the defendant on 30.05.2012.

The plaintiff maintained that Choyi permitted the

defendant to make use of the plaint schedule building R.S.A.No.145 of 2017

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temporarily as a licensee for a period of 11 months by

virtue of Ext.A2 on condition of the defendant undertaking

to comply with the terms of the licence. Admittedly, the

amount stipulated was Rs.2,400/- per month. According

to the defendant, the term of licence was expired on

30.4.2013.

12. One of the contentions taken by the defendant

is that the plaint schedule building was entrusted with him

by way of an oral entrustment by Choyi. According to

him, he has been conducting business in the plaint

schedule shop room since 1.3.2001. According to the

defendant, at the time of oral entrustment on 01.03.2001,

the defendant had paid Rs.1,25,000/- to Choyi as security.

He also stated that, when Choyi was in need of money as

demanded by Choyi, the defendant paid Rs.3,00,000/- as

advance rent. Choyi agreed to repay the said amount at

the time of vacating the room by the defendant at his will R.S.A.No.145 of 2017

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with interest at the rate of 12%.

13. On the other hand, the main contention raised

by the learned counsel for the plaintiff is that Exts.B1 and

B2 are fabricated and concocted documents. Execution

and passing of consideration thereunder are denied. The

fact that an agreement was entered into between Choyi

and defendant on 07.05.2001 incorporating the advance

rent is denied. Under the circumstances, the burden is on

the part of the defendant to prove Exts.B1 and B2 before

the court. The defendant did not adduce any oral evidence

in support of his case. He was not examined as a witness.

Exts.B1 and B2 are not proved. Absolutely no evidence

was adduced by the defendant to prove execution of

Exts.B1 and B2 by Choyi as contended by him. At the

same time, the plaintiff mounted the box and adduced

evidence to prove that Exts.B1 and B2 were not executed

by Choyi. In view of the reliable evidence adduced by the R.S.A.No.145 of 2017

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plaintiff in support of the case, the trial court entered a

finding that the defendant who is a party to the suit has

failed to adduce evidence before the trial court that

Exts.B1 and B2 were executed by Choyi. In view of the

circumstances, the trial court relied on Vidhyadhar v.

Mankikrao & another [AIR 1999 SC 1441] and held that

the case set up by him is not true to facts. On a perusal of

the facts and circumstances involved, it is clear that the

trial court has drawn adverse inference against the

defendant in accordance with the evidence adduced in the

case. The first appellate court agreed with the said finding.

14. In the written statement filed the defendant has

not denied the execution of Ext.A2 agreement. His only

contention is that he signed Ext.A2 agreement believing

them to be an agreement to enhance rent. His belief is not

proved by adducing oral evidence before the court. There

is nothing on record to indicate that he is entitled to the R.S.A.No.145 of 2017

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benefit of Act 2 of 1965 as a tenant in the plaint schedule

building. The defendant, in fact, failed to prove the oral

lease between Choyi, the successor of the plaintiff and the

defendant. Under the circumstances, the only inference

which could be drawn is that the defendant was allowed to

occupy the premises by Choyi as a licensee. In

continuation of the same, immediately after execution of

the sale deed in favour of the plaintiff, the defendant

executed licence agreement in favour of the plaintiff. It is

also very difficult to believe that the defendant who was a

business man in the plaint schedule shop room put his

signature in Exts.A1 and A2 without knowing its contents.

Exts.A1 and A2 are pure and simple licence agreements.

The licence in favour of the defendant was terminated by

issuing notice on 23.4.2013 as the period of license was

already over on 30.4.2013. Legally, the plaintiff is entitled

to terminate the license with effect from 30.4.2013. The R.S.A.No.145 of 2017

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defendant received the notice. After the termination of the

licence, the licensee is under an obligation to surrender

his possession to the owner. The plaintiff had purchased

the property as per a valid sale deed. The sale deed has

come into effect. He is now the owner of the property. An

identical position has been considered by the Apex Court

in Sant Lal Jain v. Avtar Singh [(1985)2 SCC 332]:[AIR

1985 SC 857] as follows:-

"7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not R.S.A.No.145 of 2017

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be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.

8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from someone else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession."

R.S.A.No.145 of 2017

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15. In the case on hand, Exts.A1 and A2 are license

agreement. The original oral lease alleged between Choyi

and defendant has not been proved. Exts.B1 and B2 are

also not proved. Under the circumstances, it is not

necessary on the part of the plaintiff to allege and prove

that after obtaining vacant possession of the property

pursuant to previous arrangement, Ext.A2 license

agreement was executed. As a licensee, the defendant

has no interest in the building and its possession cannot

exclude the rightful owner of the property. Merely because