Kerala High Court
C. Chinnathambi vs C. Kanthaswamy on 7 May, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
RSA Nos.152 & 161 of 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 7TH DAY OF MAY 2024 / 17TH VAISAKHA, 1946
RSA NO. 152 OF 2023
(AGAINST THE JUDGMENT AND DECREE IN A.S.165/2020 ON THE
FILE OF THE DISTRICT JUDGE, PALAKKAD DATED 14.10.2022,
ARISING FROM THE JUDGMENT AND DECREE IN O.S.283/2015 ON
THE FILE OF THE ADDITIONAL MUNSIFF COURT, PALAKKAD DATED
07.08.2020)
APPELLANT/APPELLANT/PLAINTIFF:
C. CHINNATHAMBI
AGED 59 YEARS
S/o.LATE CHELLAPPAN PILLAI,
CHITTILANCHERY HOUSE, KALLEKKULANGARA, PALAKKAD
TALUK, PIN - 678009
BY ADVS.
ATUL SOHAN
BRIGHT SINGH JOHN J.P.
R.REJI (ATTINGAL)
SREEJA SOHAN K.
K.V.SOHAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 C. KANTHASWAMY,
AGED 70 YEARS,
S/o.LATE CHELLAPPAN PILLAI,
MIDHUNAM, NEAR MARIYAMMAN TEMPLE,
KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD, PIN
- 678009
2 C. BALASUBRAMANIAN
AGED 65 YEARS
S/O. LATE CHELLAPPAN PILLAI, UDAYA NILAYAM, SREE
DURGA NAGAR, KALLEKULANGARA POST, AKATHETHARA
AMSOM, PALAKKAD TALUK PIN - 678009
3 C. CHELLAMMA
AGED 63 YEARS
W/O. K. C. CHANDRAN, SREE DURGA NAGAR,
KALLEKULANGARA POST, AKATHETHARA AMSOM, PALAKKAD
RSA Nos.152 & 161 of 2023
2
TALUK PIN - 678009
4 C. DHANALAKSHMI
AGED 52 YEARS,
W/O.MOHANAN, PADALIKKAD, KOTTEKKAD, PALAKKAD,
PIN - 678732
5 C. MUTHU LAKSHMI
AGED 50 YEARS
W/O.VISHNU, VISHNU TEA STALL, OPP. PANCHAYATH
OFFICE, KONGAD, PALAKKAD PIN - 678631
BY ADVS.
RAJESH SIVARAMANKUTTY
ARUL MURALIDHARAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
18.12.2023, ALONG WITH RSA.161/2023, THE COURT ON 7.5.2024
DELIVERED THE FOLLOWING:
RSA Nos.152 & 161 of 2023
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 7TH DAY OF MAY 2024 / 17TH VAISAKHA, 1946
RSA NO. 161 OF 2023
(AGAINST THE JUDGMENT AND DECREE IN A.S.166/2020 ON THE
FILE OF THE DISTRICT JUDGE, PALAKKAD DATED 14.10.2022,
ARISING FROM THE JUDGMENT AND DECREE IN O.S.388/2015 ON
THE FILE OF THE ADDITIONAL MUNSIFF, PALAKKAD DATED
07.08.2020)
APPELLANT/APPELLANT/DEFENDANT:
C CHINNATHAMBI
AGED 59 YEARS
S/o.LATE CHELLAPPAN PILLAI, CHITTILANCHERY
HOUSE, KALLEKKULANGARA, PALAKKAD TALUK, PIN -
678009
BY ADVS.
ATUL SOHAN
BRIGHT SINGH JOHN J.P.
R.REJI (ATTINGAL)
SREEJA SOHAN K.
K.V.SOHAN
RESPONDENTS/RESPONDENTS/PLAINTIFF:
C. KANTHASWAMY
AGED 70 YEARS
S/o.LATE CHELLAPPAN PILLAI, MIDHUNAM, NEAR
MARIYAMMAN TEMPLE, KALLEKULANGARA, AKATHETHARA
AMSOM, PALAKKAD TALUK, PIN - 678009
BY ADVS.
RAJESH SIVARAMANKUTTY
ARUL MURALIDHARAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 18.12.2023, ALONG WITH RSA.152/2023, THE
COURT ON 7.5.2024 DELIVERED THE FOLLOWING:
RSA Nos.152 & 161 of 2023
4
T.R.RAVI, J.
----------------------------------------
R.S.A Nos 152 & 161 of 2023
-------------------------------------------
Dated this the 7th day of May, 2024
JUDGMENT
The appeals have not been admitted. When the appeals
came up for admission, on the request made by the counsel,
parties were directed to appear before the Mediation Centre at
Palakkad to explore the possibility of a mediated settlement.
The mediation failed and the appeals were taken up before the
court for consideration of the merits.
2. O.S.No.283 of 2015 was filed by the appellant
seeking partition of the plaint schedule property of an extent of
5 cents with a residential house. O.S.No.388 of 2015 was filed
by the defendant seeking a decree of mandatory injunction
directing the appellant to give vacant possession of the plaint
schedule property. The trial court decreed O.S.No.388 of 2015
and dismissed O.S.No.283 of 2015 filed by the appellant. The
appellant preferred A.S.No.165 of 2020 against the judgment
in O.S.No.283 of 2015 and A.S.No.166 of 2020 against the
judgment in O.S.No.388 of 2015 before the District Court,
RSA Nos.152 & 161 of 2023
Palakkad. By a common judgment, the District Court, Palakkad
has dismissed the appeals. Having lost before the trial court as
well as the First Appellate Court, the appellant has filed these
regular second appeals. The substantial questions which have
been formulated by the appellant in these appeals are whether
an assignee of the property in which the appellant was residing
as a member of the family could evict him by a prayer for
mandatory injunction, without seeking recovery of possession
on the strength of title and whether a simple suit for
mandatory injunction alleging licence is maintainable when it is
shown that prior to the assignment of the property in favour of
the plaintiff in O.S.No.388 of 2015, the appellant was in
possession. The same questions of law have been formulated
in both the appeals and as a matter of fact, there is no
question of law regarding the correctness of the dismissal of
the suit for partition.
3. The appellant and the plaintiff in O.S.No.388 of 2015
are brothers. The plaint schedule property belonged to their
paternal aunt Meenakshi Ammal. According to the appellant,
his father was residing in a rented building about 300 metres
away from the plaint schedule property and when he had to
RSA Nos.152 & 161 of 2023
vacate the rented building, his sister permitted him to reside in
her house with his family. Admittedly, Meenakshi Ammal sold
the plaint schedule property to the Appellant's mother Kalikutty
Ammal as early as in 1970. According to the appellant, the
document was executed in the name of the mother since the
appellant's father was in a financial crisis. The appellant
contended that he was residing in the house situated in the
plaint schedule property. By document No.241 of 2013 of SRO,
Palakkad, the appellant's mother sold the property to the
appellant's brother who is the plaintiff in O.S.No.388 of 2015.
According to the appellant, the above sale deed was a result of
foul play by his brother and it is claimed that on the death of
the appellant's mother, all her children had right over the
property. The suit for partition was filed on the above
pleadings. The case of the appellant's brother, who is the
plaintiff in O.S.No.388 of 2015, is that the appellant was in
possession of the property as a licensee. According to him, the
property belonged to Kalikutty Ammal as per document
No.1244 of 1970 of SRO, Palakkad. It is stated that the
property is his mother's self-acquired property, purchased by
her using the income derived from her job as a housemaid in
RSA Nos.152 & 161 of 2023
the residence of one Vasudevan Nair. It is stated that for the
purpose of raising funds for the marriage of her grand
daughter, Kalikutty Ammal had sold the property to him as per
document No.241 of 2013. It is contended that he and the
appellant were holding licence for distribution of Malayala
Manorama and Mathrubhumi dailies and when he got a job in a
timber mill at Elappully he had left the residence permitting the
appellant to reside in the building situated in the plaint
schedule property for the convenience of conducting his
business and on account of the fact that the appellant did not
have any other place of residence. It is further submitted that
the appellant refused to vacate the property when requested
and hence notice of termination of licence was given and
vacant possession was demanded.
4. The trial court dismissed the suit for partition and
decreed the suit for mandatory injunction. The appeals filed
by the appellant have been dismissed by the First Appellate
Court affirming the findings of the trial court. The trial court as
well as the First Appellate Court found that in Ext.A12 which is
the original assignment deed executed by Meenakshi Ammal in
favour of Kalikutty Ammal on 19.5.1970, there is nothing to
RSA Nos.152 & 161 of 2023
show that the consideration for purchasing the property was
paid by the father of the appellant. The court found that even
according to the appellant, the father was having financial
difficulty and hence the contention that the purchase was using
the funds of the father cannot be accepted. The appellate
court noticed that in his oral evidence, the appellant's brother
had stated that Meenakshi Ammal had helped them by giving
the landed property, and observed that though it is doubtful
whether there was an outright sale as contended by the
parties, going by Ext.A12, it cannot be disputed that the
property belonged to Kalikutty Ammal. Further, Ext.A6 which is
the death certificate of the appellant's father shows that the
appellant's father died on 17.02.1970 and Ext.A12 was
executed on 19.5.1970, after the death of the appellant's
father.
5. In view of the above undisputable facts, the trial
court as well as the First Appellate Court cannot be faulted for
having found that the property was actually purchased by
Kalikutty Ammal from Meenakshi Ammal. The next question
considered by the courts below was whether Kalikutty Ammal
was in a fit state of mind to execute Ext.A5 document in favor
RSA Nos.152 & 161 of 2023
of the appellant's brother. The courts relied on the evidence of
PW2, who is a member of the family and an attestor to Ext.A5
document. PW2 has stated that the document was executed in
his presence as well as in the presence of Chellamma, another
member of the family. Based on the evidence on record, the
trial court as well as the First Appellate Court held that there is
no convincing evidence to show that Ext.A5 is vitiated by any
fraud or foul play as alleged. The finding regarding the title of
the appellant's brother also does not warrant any inference by
this court in exercise of jurisdiction under Section 100 of the
Code of Civil Procedure.
6. The next question to be considered is the nature of
possession of the appellant over the property. The appellant
has produced Exhibits B1 to B107 to show his possession over
the property. There is no necessity to go into the said
documents since the appellant's brother admits that the
appellant was residing in the plaint schedule property. The
appellant, however, has no case that he has perfected his right
of title by adverse possession and ouster. His contention itself
was that he is a co-owner of the property. The above
contention is already found against him. The Appellate Court
RSA Nos.152 & 161 of 2023
found that whatever be the duration of the possession, there is
no denial of the title of the appellant's brother. The trial court
as well as the First Appellate Court found that there is no
requirement that a license can only be by a written instrument.
Section 54 of the Easements Act provides that the licence can
either be express or implied from the conduct of the grantor.
The appellant is the younger brother of the plaintiff in
O.S.No.388 of 2015. The appellate court relied on the
judgment of the High Court of Delhi in Arjan Dev v. Om
Parkash [1992 KHC 2102] which is rendered in similar
circumstances, where the younger brother was permitted to
reside along with the mother. The High Court of Delhi held that
the arrangement amounts to a license in spite of the fact that
there is no written document. It is on that basis that the First
Appellate Court found that the plaintiff in OS No.388 of 2015 is
entitled to vacant possession of the plaint schedule property
and that the prayer for mandatory injunction is allowable. It is
seen from the judgment of the appellate court that the counsel
for the appellant had prayed for sufficient time to vacate the
building if the appeal is to be dismissed against the appellant.
The appellate court, in the above circumstances, noticed that
RSA Nos.152 & 161 of 2023
the suit was filed in 2015 and sufficient time has already
elapsed, and granted a period of 6 months for vacating the
property. It is after having made such a submission and
obtained time for vacating the building that the second appeal
has been filed. In view of what has transpired before the First
Appellate Court, I do not think this is a fit case where this
Court should exercise its jurisdiction under Section 100 CPC
and entertain the appeal. Since the appellant himself has
requested for sufficient time to vacate, the appellant cannot be
heard to challenge the judgment passed by the First Appellate
Court. Faced with the above situation, the counsel for the
appellant in these appeals sought for further time to vacate the
premises since the appellant did not have any other residence
of his own. Though I find that no interference is warranted with
the concurrent judgments of the trial court and the First
Appellate Court having regard to the relationship between the
parties and the fact that the appellant did not have a residence
of his own, I am of the considered opinion that while dismissing
these appeals, sufficient time can be granted to the appellant
to vacate the premises. The suit is of the year 2015 and
already 9 years are over.
RSA Nos.152 & 161 of 2023
7. In the above circumstances neither do any
substantial questions of law arise in these appeals, nor can the
appellant prefer these appeals having regard to the benefit
derived by him in the form of time to vacate the premises from
the First Appellate Court, and the appeals are dismissed.
However, if the appellant files an affidavit undertaking before
the execution Court within one month from today, undertaking
to vacate the premises within 4 months from today, the
execution of the decree in O.S.No.388 of 2015 shall be kept in
abeyance till the expiry of the said four months.
Sd/-
T.R. RAVI
JUDGE
dsn
