Kerala High Court

A.Sivalingappa Gowder @ Sivaraj ... vs N.A.Anidas And Another on 24 May, 2024

                                                             'CR'
            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
    FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
                        RSA NO. 943 OF 2008

AGAINST    THE   JUDGMENT   AND    DECREE   DATED   26.06.2008   IN   AS
NO.221 OF 2005 OF II ADDITIONAL DISTRICT COURT & SESSIONS
COURT,PALAKKAD ARISING OUT OF THE JUDGMENT AND DECREE DATED
20.07.2005 IN OS NO.500 OF 2003 OF ADDITIONAL MUNSIFF COURT,
PALAKKAD

APPELLANTS/APPELLANTS/DEFENDANTS:

    1      A.SIVALINGAPPA GOWDER @ SIVARAJ GOWDER,
           [DIED LRs IMPLEADED]
           S/O.ANANTHARAMA GOWDER,KUNNATHURMEDU,
           KUNNANUR, AMSOM, PALAKKAD.

    2      ANANTHARAMAN RAVI,[DIED LRs IMPLEADED]
           S/O.A.SIVALINGAPPA GOWDER @ SIVARAJ GOWDER,
           -DO- -DO-

 ADDL.3    SHAKILA.B
           AGED 51 YEARS, W/O.LATE ANANTHARAMAN @ RAVI,
           NO.4,ALAPHA NAGAR,KOVAI PUDUR,
           COIMBATORE-641 042.

 ADDL.4    NAMRUTA.A
           AGED 24 YEARS, D/O.LATE ANANTHARAMAN @ RAVI,
           NO.4,ALAPHA NAGAR,KOVAI PUDUR, COIMBATORE-641 042.

 ADDL.5    VIDHYANANDHI.M
           AGED 48 YEARS, W/O.LATE ANANDARAJ,
           NO.III, JAMIYA NAGAR,BHARATHI NAGAR EXTN.,
           KOVAI PUDUR,COIMBATORE-641 042.

 ADDL.6    S.A.SABARI KRISHNA
           AGED 21 YEARS,S/O.LATE ANANDARAJ,
           NO.III, JAMIYA NAGAR, BHARATHI NAGAR EXTN.,
           KOVAI PUDUR, COIMBATORE-641 042.
 RSA 943/2008
                                    2

  ADDL.7       S.A.SMRITI GOWRI
               AGED 18 YEARS, D/O.LATE ANANDARAJ,
               NO.III, JAMIYA NAGAR,BHARATHI NAGAR EXTN.,
               KOVAI PUDUR,COIMBATORE-641 042.

               (LEGAL REPRESENTATIVES OF DECEASED FIRST
               APPELLANT ARE IMPLEADED AS ADDL.A3 TO A7 AND
               LEGAL REPRESENTATIVES OF DECEASED SECOND
               APPELLANT ARE IMPLEADED AS ADDL.A3 AND A4 AS PER
               THE ORDER DATED 11.10.2022 IN IA.1/2022.)

               BY ADVS.
               SAJAN VARGHEESE K.
               LIJU. M.P


RESPONDENTS/RESPONDENTS/PLAINTIFFS:

     1         N.A.ANIDAS, S/O.APPUKKUTTAN
               VALIYAVEETTIL, KUNNATHURMEDU,
               KANNANUR AMSOM, PALAKKAD.

     2         NA AJIDAS S/O.APPUKKUTTAN VALIYAVEETIL
               KUNNATHURMEDU, KUNNANUR AMSOM, PALAKKAD.

               BY ADVS.
               SRI.K.JAYAKUMAR
               SRI.P.B.KRISHNAN - R1 & R2


         THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON   11.4.2024,      THE   COURT    ON   24.05.2024   DELIVERED   THE
FOLLOWING:
 RSA 943/2008
                                           3

                                                                     'CR'
                          C.PRATHEEP KUMAR, J.
                         --------------------------------------
                                 R.S.A.943 of 2008
                              -----------------------------
                               Dated : 24th May 2024

                                   JUDGMENT

1. This Second Appeal has been preferred under Section 100 r/w

Order XLII Rule 1 & 2 of CPC by the appellants in A.S.221/2005

on the file of the District Court, Palakkad, who are the defendants in

O.S.500/2003 on the file of the Munsiff's Court, Palakkad, against

the judgment dated 26.6.2008 dismissing the appeal. For the

purpose of convenience the parties are hereafter referred as per their

rank before the trial court.

2. The brief facts necessary for the disposal of this appeal are the

following:

The plaint schedule property consisting of ½ share over 98 cents

of landed property and the residential building scheduled in the

plaint originally belonged to late Anandarama Gowder. He had three

sons, Devaraja Gowder, Subbayya Gowder and Sivalingappa

Gowder, who is the 1st defendant in the suit. The 2 nd defendant is

the son of the 1st defendant. In the family partition, the above 98

cents and the building therein was jointly allotted to Devaraja

Gowder and Subbayya Gowder. One half undivided right of

Devaraja Gowder from the above 98 cents and building was

purchased by the plaintiffs 1 and 2 as per Ext.A1 sale deed

No.3406/2001, which is the plaint schedule property. In one portion

of the building the defendants have been residing with the

permission of Devaraja Gowder. After purchasing the share of

Devaraja Gowder as per Ext.A1 sale deed, the plaintiffs filed the

suit for mandatory injunction for vacating the defendants from the

schedule property and the building therein. The defendants would

admit that Devaraja Gowder and Subbayya Gowder are the co-

owners of the 98 cents of property scheduled in the plaint. However,

according to them, after the family partition, the 1 st defendant

exchanged his house situated at Kunnathurmedu to Devaraja

Gowder with the share of Devaraja Gowder in the above 98 cents

and started residence in the building therein. Therefore, the

defendants would contend that they are residing in the building in

the schedule property not as a licencee. They would further contend

that they are not aware of the sale deed executed by Devaraja

Gowder in favour of the plaintiffs and also that the right of

Devaraja Gowder was acquired by the defendants by adverse

possession and limitation.

3. The trial Court rejected the contentions of the defendants and

decreed the suit by directing them to surrender vacant possession of

the schedule property to the plaintiffs. The 1st Appellate Court also

confirmed the judgment and decree of the trial court. Dis-satisfied

with the above concurrent findings of the trial court and the 1 st

appellate court, the defendants preferred this second appeal. During

the pendency of the Second Appeal, both the defendants died and

the LRs were impleaded as additional appellants 3 to 7.

4. At the time of admission, the following substantial question of law

was formulated by this Court :

"Whether the courts below were justified in decreeing the suit

by granting decree of mandatory injunction directing the

appellants/defendants to vacate the scheduled portion of the

building occupied by them along with the first appellant's

brother Subbayya Gowder consequent on acquisition of half

right over the building and property from a co-owner, without

a decree for partition and separate possession of the half

right purchased by them on the strength of Ext.A2 power of

attorney executed by one of the co-owners, especially when

plaintiffs are not related to the appellants/defendants, in view

of Section 44 of the T.P.Act."

5. Heard both sides in detail on the above substantial question of

law.

6. At the time of arguments, the main contention raised by the

learned counsel for the defendants was to the effect that since the

defendants are residing in the building in the plaint schedule

property even at the time of family partition, the remedy of the

plaintiffs is to file a suit for recovery possession and not one for

mandatory injunction. Another contention raised was that, since the

residential building situated in the plaint schedule property is the

family house of the defendants and the other co-owner Subbaraja

Gowdar, the plaintiffs who are strangers cannot seek recovery

possession of the same, without a prayer for partition. In support of

the above arguments, the learned counsel for the defendants relied

upon Section 44 of the Transfer of Property Act, 1882.

7. Section 44 of the Transfer of Property Act dealing with the

transfer by one co-owner is extracted below for reference :

44. Transfer by one co-owner.--

Where one of two or more co-owners of immovable

property legally competent in that behalf transfers his

share of such property or any interest therein, the

transferee acquires, as to such share or interest, and so

far as is necessary to give effect to the transfer, the

transferor's right to joint possession or other common or

part enjoyment of the property, and to enforce a partition

of the same, but subject to the conditions and liabilities

affecting, at the date of the transfer, the share or interest

so transferred.

Where the transferee of a share of a dwelling-house

belonging to an undivided family is not a member of the

family, nothing in this section shall be deemed to entitle

him to joint possession or other common or part

enjoyment of the house.

8. It is true that the plaintiffs who have purchased ½ undivided share

from 98 cents of landed property and the residential building

scheduled in the plaint are total strangers and not members of the

family of his predecessor. Therefore, in the light of Section 44 of the

Transfer of Property Act, it was argued that the plaintiffs are not

entitled to get joint possession or other common or part enjoyment

of the dwelling house situated in the plaint schedule property.

9. In the instant case, the above 98 cents of property and

residential building scheduled in the plaint was allotted to the

predecessor of the plaintiffs Devaraja Gowder and his brother

Subbayya Gowder, as early as in the year 1957. As per the above

partition deed, no right in the above property was given to the 1 st

defendant. Till the execution of the partition deed in the year 1957,

the 1st defendant was a co-owner of the above property and the

residential building. As and when the partition deed was executed in

the year 1957, the 1st defendant ceased to be a co-owner of the

above property.

10. It is true that even after the execution of the partition deed in

1957, the 1st defendant continued to reside in the residential building

situated in the above 98 cents of property. In the written statement,

the contention of the defendants is that immediately after the

partition in 1957, Devaraja Gowder allowed the 1 st defendant and

his family to reside in the residential building in the plaint schedule

property in exchange for allowing him to reside in the house of the

1st defendant at Kunnathurmed and that accordingly, both of them

had relinquished their rights over their respective properties.

Further, the defendants contended that they have acquired

prescriptive title over the plaint schedule property by adverse

possession and limitation. However, both the trial court as well as

the 1st appellate court concurrently found that the defendants could

not prove the above claim. The above concurrent findings of the

trial court as well as the 1st appellate court regarding specific

question of facts cannot be agitated again before this Court in

second Appeal. Since the 1st defendant could not prove the claim

that after the family partition, he had exchanged his house situated

at Kunnathurmedu to Devaraja Gowder with the share of Devaraja

Gowder in the above 98 cents, his residence in the building in the

plaint schedule property after the execution of partition deed in the

year 1957, can only be as a licensee of Devaraja Gowder.

11. In the decision in Rajappan v. Veeraraghava Iyer, 1969 KHC

126 relied upon by the learned counsel for the respondents, a Single

Judge of this Court, after comparing a lease and licence, held that,

though exclusive possession is given if the possession is permissive

does not amount to a lease. The defendants also have no case that

they are in possession of the building in the schedule property as a

lessee. At the same time, even according to the defendants, they are

occupying the portion of the dwelling-house in the schedule

property with the permission of the prior owner Subbayya Gowder.

The above circumstances also substantiates the conclusion that the

status of the defendants is only as licensees and nothing more than

that.

12. Since, after the execution of the partition deed in the year 1957,

the 1st defendant is not a co-owner of the plaint schedule property,

he is not entitled to get the benefit of the second paragraph of

Section 44 of the Transfer of Property Act. At the same time, even

after the partition deed of 1957, the other co-owner namely

Subbayya Gowder continues to be the co-owner of the remaining

one-half share in the 98 cents of landed property and the residential

building scheduled in the plaint. Therefore, Subbayya Gowder

could enforce the right under Section 44 of the Transfer of Property

Act as against the 1st defendant. In this case, the other co-owner

namely Subbayya Gowder is not made a party. It is true that in the

written statement the defendants have raised a contention that

Subbayya Gowder is a necessary party to the suit and failure to

implead him as a party to the suit is fatal to the plaintiffs' claim. It

was also argued that the plaintiffs who had acquired only one-half

right over the 98 cents and the residential building scheduled in the

plaint cannot claim exclusive possession over the residential

building without a prayer for partition and without making the other

co-owner as a party in the suit.

13. The learned counsel for the plaintiffs would argue that the

plaintiffs have no right, interest or claim as against the other co-

owner Subbayya Gowder and hence the decree obtained by them as

against the defendants will in fact enure to the benefit of Subbayya

Gowder also. He has also relied upon certain decisions to

substantiate his contention that one co-owner can sue another

person for recovery of possession, without the juncture of the other

co-owners and also to show that a decree obtained in such a

proceeding will enure to the benefit of the other co-owners also.

14. The law is well settled that one co-owner could sue a third party

for recovery of possession, on the strength of his title as a co-owner,

without the juncture of the other co-owners [Merly Thomas

Kuriakose v. Dr.George Kuriakose, RFA 638/2012 decided on

19.3.2024; Valsala v. Sundaram Nadar, 1993 (2) KLT 67] As held

by the learned Single Judge in Merly Thomas Kuriakose, (supra),

in such cases, a decree could be granted to the co-owner/plaintiff

clarifying that the decree is granted in the capacity as co-owner and

that it would enure to the benefit of other co-owners also. In the

decision in Valsala (supra) in paragraph 12 the learned Single Judge

held that :

"A tenant continuing in possession after the

determination of his tenancy, without the assent of the

landlord being thus only in the position of a trespasser,

necessarily the rule relating to suits against trespassers

by a co-owner must apply, that is a co-owner can in his

own right sue for recovery of possession from such a

person, without arraying the other co-owners as parties

to the suit."

15. However, in exceptional circumstances the other co-owners also

may become necessary parties to the suit, if one of the co-owners

claims exclusive title to the property denying the rights of the other

co-owners. Such an eventuality was discussed by the learned Single

Judge in paragraph 13 as follows :-

"But the question still arises as to whether the plaintiff

in this case can recover possession from the defendants.

An exception to the rule above mentioned has been made

where the suing co-owner claims exclusive title to the

property in derogation or denial of the rights of the other

co-owners. In such an event, the co-owner whose rights

are denied or against whose interest the plaintiff is suing

is a necessary party to the suit, and his absence will be

fatal to the suit itself."

16. In the instant case, the plaintiffs have not denied the right, title

and possession of the other co-owner Subbayya Gowder over the

remaining ½ undivided share in the plaint schedule property and as

such absence of the other co-owner Subbayya Gowder in the party

array in this case is not at all fatal to the prayer for recovery

possession claimed by the plaintiffs.

17. The learned counsel for the defendants relying upon the decision

of the Hon'ble Supreme Court in Dorab Cawasji Warden v. Coomi

Sorab Warden and Others, AIR 1990 SC 867, would argue that

the defendants are entitled to protection under the second paragraph

of Section 44 of the Transfer of Property Act. In paragraph 25 of the

above decision, the Hon'ble Supreme Court held that :

"The two brothers, therefore, shall be deemed to be

holding the property as members of an undivided family

and in the absence of the partition by metes and bounds

qua this property they shall be deemed to have been

holding the dwelling house as an undivided family.

Prima facie, therefore, the transfer by defendants 1 to 3

would come within the mischief of second paragraph of

S.44 of the Act."

18. As I have already noted above, the protection under the second

paragraph of Section 44 of the Transfer of Property Act is available

in this case only to the other co-owner Subbayya Gowder. Since the

first defendant in this case is not a a co-owner, but only a licensee

under the other co-owner Subbayya Gowder, he is not entitled to

claim the protection under the second paragraph of Section 44 of the

Transfer of Property Act .

19. The learned counsel for the defendants relied upon Section 4 of

the Partition Act also, in support of his argument for denying

eviction to the plaintiffs. Section 4 of the Partition Act dealing with

partition suit by transferee of share in dwelling-house reads thus :

"4. Partition suit by transferee of share in dwelling-

house -

(1)Where a share of a dwelling-house belonging

to an undivided family has been transferred to a person

who is not a member of such family and such transferee

sues for partition, the Court shall, if any member of the

family being a shareholder shall undertake to buy the

share of such transferee, make a valuation of such share

in such manner as it thinks fit and direct the sale of such

share to such shareholder, and may give all necessary

and proper directions in that behalf.

(2)If in any case described in sub-section (1) two

or more members of the family being such shareholders

severally undertake to buy such share, the Court shall

follow the procedure prescribed by sub-section (2) of

the last foregoing section. "

20. The benefit of sub-section (1) of Section 4 the Partition Act applies

only to a shareholder of a dwelling house. As I have noted above,

the first defendant in this case is not a co-owner of the schedule

property, and as such he is not a shareholder of the dwelling-house

situated therein. He is only a licensee under one of the co-owners

Subbayya Gowder. Since the 1st defendant is not a shareholder of

the dwelling house involved in this case, he is not entitled to get the

benefit of Section 4 (1) of the Partition Act also.

21.Relying upon the decision of the Hon'ble Supreme Court in

Gautam Paul v. Debi Rani Paul and Others, AIR 2001 SC 61,

the learned counsel for the defendants would argue that without a

prayer for partition, the prayer for recovery possession cannot be

allowed. In the above decision, one of the questions which arose for

consideration of the Hon'ble Supreme Court was "whether in the

absence of the transferee suing for partition a shareholder can

invoke S.4 and buy over such share ?"

22. In the decision in Ghantesher Ghosh v. Madan Mohan Ghosh,

1996 (11) SCC 446, the Hon'ble Supreme Court has laid down the

conditions to be fulfilled for invoking Section 4 of the Partition Act,

in paragraph 4, as follows :

(1) A co-owner having undivided share in the family

dwelling house should effect transfer of his undivided

interest therein.

(2) The transferee of such undivided interest of the co-

owner should be an outsider or stranger to the family.

(3) Such transferee must sue for partition and separate

possession of the undivided share transferred to him by

the co-owner cncerned.

(4) As against such a claim of the stranger transferee, any

member of the family having undivided share in the

dwelling house should put forward his claim of pre

emption by undertaking to buy out the share of such

transferee, and

(5) While accepting such a claim for pre emption by the

existing co-owner of the dwelling house belonging to the

undivided family, the Court should make a valuation of

the transferred share belonging to the stranger transferee

and make the claimant co-owner pay the value of the

share of the transferee so as to enable the claimant co-

owner to purchase by way of pre emption the said

transferred share of the stranger transferee in the

dwelling house belonging to the undivided family so that

the stranger transferee can have no more claim left for

partition and separate possession of his share in the

dwelling house and accordingly can be effectively denied

entry in any part of such family dwelling-house."

23. In the decision in Gautam Paul (supra), relying upon the above

principles laid down in Ghantesher Ghosh (supra), the Hon'ble

Apex court held that, prayer for partition is necessary for claiming

the right of pre-emption under Section 4 of the Partition Act. The

right of pre-emption recognized under Section 4 of the Partition Act

is available only to a sharer of a dwelling-house. The present suit is

not one claiming pre-emption. Since the 1st defendant is not a sharer

of the dwelling-house involved in this case, and the suit is not for

pre-emption, the decision in Gautam Paul (supra) does not apply

to the facts of this case.

24. On the other hand, even if the plaintiffs recover possession of the

dwelling-house situated in the plaint schedule property in his

capacity as a co-owner, the same will enure to the other co-owner

Subbayya Gowder also. More over, the claim of Subbayya Gowder

under Section 4 of the Partition Act and Section 44 of the Transfer

of Property Act will not in any way be affected by the decree that

may be passed in this case, as Subbayya Gowder is not a party in

the present proceedings.

25. The learned counsel for the defendants would argue that since the

defendants are residing in the dwelling-house in the plaint schedule

property even before the execution of Ext.A1 sale deed, they can be

evicted only through a suit for recovery of possession and a suit for

mandatory injunction is not enough. He has also relied upon the

decision of a Division Bench of this Court in Aspinwall and

Co.Ltd v.Soudamini Amma, 1974 KLT 681, to substantiate the

above argument. According to the plaintiffs, after purchasing the

plaint schedule property as per Ext.A1 sale deed in the year 2001,

they have terminated the licence on 12.7.2003 and demanded the

defendants to vacate the premises. Since the defendants failed to

vacate the building as demanded, the plaintiffs preferred this suit for

mandatory injunction.

26. In paragraph 5 of the decision in Aspinwall and Co.Ltd, the

Division Bench held that :

"The licence is terminated. But the licensee does not leave

the premises. The question that may arise in the suit is

whether a suit for a mandatory injunction or a suit for

possession is the proper remedy. A mere licence only makes

an act lawful which without it would be unlawful. A

licensee has only a right of occupation with the permission

of his licenser and his possession is not juridical

possession. The licensee will be the actual occupant but the

licenser will be the person having the control or possession

of the property through his licensee. Then on the

termination of the licence can the licensee be treated as a

trespasser? In the possession of a trespasser there cannot

but be an element of animus possidendi which will not be

there in the possession which a licensee is having. Even

after the termination of the licence the licensee may have

to continue to be in occupation of the premises for some

time, because in many cases the licensee may require some

reasonable time to remove materials belonging to him and

quit the place. But during such time the licenser will be

deemed to be in possession through his licensee, because

the licensee cannot have any independent or separate

interest in the premises. In that case a licensee cannot

possibly be treated as a trespasser. But there will be cases

where even after the expiry of the licence the licenser

sleeps over the matter and does not take prompt action to

neck the licensee out of the premises. No doubt a licensee

can continue in occupation of the premises for a

reasonable time after the termination of the licence. But if

the licenser is not vigilant and the licensee continues in

occupation of the premises beyond this reasonable time,

what will he be? Will he be still a licensee or will he

become a trespasser? If he continues to cling on to the

premises why should he still be a licensee? No doubt it will

be difficult to make a distinction in actual practice as to

when a licensee becomes a trespasser and upto what time

he will continue to be a licensee. There can be a more

definite test. If on the expiry of the licence an assertion of a

hostile title is made by the licensee and the licenser sleeps

over the matter then the occupation of the licensee can be

considered to have been converted into one of possession

of a trespasser. Under such circumstances the licenser will

have to sue for recovery of possession and a suit for a

mandatory injunction under S.39 of the Specific Relief Act,

1963 will not be the remedy."

27. In the instant case, the licence was terminated on 12.07.2003

and immediately thereafter the suit was filed on 21.07.2003.

Therefore, it can be seen that, in this case there is absolutely no

delay in filing the suit for mandatory injunction, after the

termination of the licence and as such, there was no occasion for the

defendants to change their character from that of a licensee to that

of a trespasser. For the very same reasons it is also to be held that in

this case there is absolutely no necessity for any suit for recovery of

possession and as such the present suit for mandatory injunction is

sufficient for claiming recovery of possession from the defendants.

28.In the decision in George v. John, 1984 KHC 117 relied upon by

the learned counsel for the plaintiffs, another Division Bench of this

Court held in paragraph 9 thus :

"........A trespasser is a person in wrongful possession

who has a hostile animus against the person entitled to

the legal possession of the property. A licensee has no

possession and having come on the property under a

permissive arrangement with no possession or interest

it cannot be assumed that the moment the licence is

withdrawn he acquires the necessary physical and

mental elements to become a trespasser. He might

usurp the possession and develop into a trespasser, but

then it is not an automatic and necessary development

the moment the licence is over. If he is a trespasser he

would perfect his possession and become an owner at

the end of 12 years. As the Privy Council observed in

Kodoth Ambu Nayar v. Secretary of State for India, ILR

Madras 572 (582) "Their Lordships think that a

licensee cannot claim title only from possession,

however, long, unless it is proved that the possession

was adverse to that of the licenser, to his knowledge

and with his acquiescence". We are not concerned with

title but this passage is helpful to show that possession

of a licensee could become hostile, after revocation of

the licence only if the possession was adverse to the

licenser to his knowledge and with his acquiescence.

That is a matter to be pleaded and proved by the

licensee. Lawful possession however long will not be

adverse and it is only adverse possession that leads to

the acquisition of title. A licensee's occupation does not

become hostile possession, or the possession of a

trespasser the moment the licence comes to an end."

29. Relying upon the decision of the Hon'ble Supreme Court in Sant

Lal Jain v. Avtar Singh, AIR 1985 SC 857, the learned counsel for

the plaintiffs would argue that even if there is some delay in

approaching the court, the court should not deny relief of mandatory

injunction to the licenser by driving him to file another round of suit

for recovery of possession, as it is necessary to avoid multiplicity of

suits. In paragraph 7 the Hon'ble Supreme Court held that:

"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 be denied relief merely because he had

couched the plaint in the form of a suit for mandatory injunction."

30. The learned counsel for the plaintiffs relying upon Section 59 of

the Easements Act would also argue that they are not bound by the

license granted by his predecessor. Section 59 of the Easements Act,

states that :

59. Grantors transferee not bound by license

"When the grantor of the license transfers the property

affected thereby, the transferee is not as such bound by

the license."

31. It is true that by virtue of S.59 of the Easements Act the plaintiffs

are not bound by the license granted by Devaraja Gowder. Even

then, the plaintiffs have terminated the license and filed the suit only

thereafter. Since the suit is filed after terminating the license, S.59

of the Easements Act has no relevance in the facts and circumstance

of the present case.

32. In the light of the above discussions it can be seen that, the

defendants not being co-owners of the plaint schedule property and

the residential building situated therein, they are not entitled to get

the benefit of paragraph 2 of Section 44 of the Transfer of Property

Act. Since the 1st defendant along with the 2nd defendant are residing

in the dwelling-house in the plaint schedule property as liencesees,