C. CHINNATHAMBI v. C. KANTHASWAMY and others

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 7[TH] 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 7[TH] 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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