K.S. Govindan Nair v. Hari Prasad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938** **RSA.NO. 1187 OF 2005 (G) -------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 16.08.2005 IN A.S. NO. 316 OF 2003 OF THE SUB COURT,NEYYATTINKARA.** **AGAINST THE JUDGMENT DATED 13.10.2003 IN O.S. NO.400 OF 2001 OF THE PRINCIPAL MUNSIFF'S COURT,NEYYATTINKARA.** ## **APPELLANT/APPELLANT/DEFENDANT:** **------------------------------** **K.S.GOVINDAN NAIR, AGED 60 YEARS, S/O.KUNJIRAMAN NAIR, `KANMANI', T.C.30/96,, PALKULANGARA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.M.R.ANANDAKUTTAN SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN SRI.B.SATHIQ** **RESPONDENT/RESPONDENT/PLAINTIFF: --------------------------------** **HARI PRASAD, S/O.JANARDHANAN PILLAI, T.C.19/1910, KESAVAN NAIR ROAD, POOJAPPURA, THIRUVANANTHAPURAM.** **BY ADV. SRI.M.NARENDRA KUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2016, ALONG WITH R.S.A. NO.1188 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = = = = R.S.A.Nos. 1187 & 1188 of 2005** **- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 21st day of November, 2016 ## **J U D G M E N T** The appellant is the plaintiff in O.S. No.361 of 2001 and the defendant in O.S. No.400 of 2001 on the files of the Munsiff's Court, Neyyattinkara. O.S. No.361 of 2001 was a suit for simple injunction, restraining the defendant from trespassing into the plaint schedule property and sheds. O.S. No.400 of 2001 was a suit for declaration of title, possession and for eviction of the plaintiff in O.S. No.361 of 2001 from the plaint 'B', 'C' and 'E' schedule properties. After considering the evidence on record, the trial court dismissed O.S. No.361 of 2001 and decreed O.S. No.400 of 2001. 2. Feeling aggrieved, the appellant herein, ## **R.S.A.Nos. 1187 & 1188 of 2005** ## **-: 2 :-** being the plaintiff in O.S. No.361 of 2001 and the defendant in O.S. No.400 of 2001 filed these appeals, challenging the common judgment and decree passed against him. Thus, the parties are common and the matters in issue involved in both these appeals are one and the same. Hence, these appeals are heard together and disposed of accordingly. 3. Being a Second Appeal, the scope and extent of consideration in these appeals is confined to the substantial questions of law framed in these Regular Second Appeal only. The substantial questions of law framed are as follows: - _1.“Whether the arrangement between the appellant and the 1[st] respondent is an irrevocable licence under Section 60B of the Indian Easement Act,1882?_ - _2.Whether the claim of immunity from eviction(irrevocable licence) can be_ ## **R.S.A.Nos. 1187 & 1188 of 2005** ## **-: 3 :-** _negatived on the ground of lack of pleadings overlooking the admissions in the plaint?_ 4. The parties are referred to as in O.S. No.361 of 2001. Going by the pleadings in O.S. No.361 of 2001, it is the case of the plaintiff that the plaint schedule properties originally belonged to the defendant and she obtained title and possession over the plaint schedule property, as per Partition Deed No.4202 of 1969 of Balaramapuram Sub Registry and while so, she permitted the plaintiff for manufacturing match splints and the plaintiff constructed a match factory in the plaint schedule property. Subsequently, the defendant on 10.07.1976, executed an agreement of sale in respect of the plaint schedule property and in the agreement, it is categorically admitted that the possession of the **R.S.A.Nos. 1187 & 1188 of 2005** ## **-: 4 :-** property and factory is transferred as per the agreement. Therefore, the plaintiff has got right under Section 53A of the Transfer of Property Act,1882 _(hereinafter referred to as 'the T.P. Act')_ . In short, the plaintiff has claiming possession of the property under Ext.A1 agreement and he claimed protection under Section 53A of the T.P. Act. 5. The sum and substance of the argument advanced by the learned counsel for the appellant on the substantial questions of law framed above are that the courts below ought to have found that the plaintiff is in permissive possession and he has executed works of permanent nature acting upon licence and such a licence is irrevocable and hence the courts below ought to have raised an issue, as to whether the arrangement between appellant/ ## **R.S.A.Nos. 1187 & 1188 of 2005** ## **-: 5 :-** plaintiff and 1[st] respondent/1[st] defendant is an irrevocable licence under Section 60B of the Indian Easement Act,1882. 6. Going by the pleadings, in the written statement filed in O.S. No.400 of 2001, it is seen that the pleadings are analogous to that of the pleadings in O.S. No.361 of 2001 only. Coming to the relief sought for in O.S. No.361 of 2001, there is no pleadings or relief claiming irrevocable licence under Section 60B of the Indian Easement Act,1882. That apart, it is seen that the reliefs are molded claiming protection under Section 53A of the T.P. Act only and that stands negatived by the trial court and affirmed by the appellate court. 7. It is trite law that evidence without pleadings cannot be looked into. According to Order ## **R.S.A.Nos. 1187 & 1188 of 2005** ## **-: 6 :-** VI Rule 7 of the Code of Civil Procedure, 1908 ( _hereinafter referred to as 'the C.P.C.), no pleading shall, except by way of amendment, raised any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. similarly, according to Order VII Rule 7 of the C.P.C., every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative._ The above view is supported by decision of the Apex Court in _**Nagubai Ammal and Others v. B.Shama Rao and Others**_ [AIR 1956 SC 593]. In _**Trojan and Co.v. Nagappa**_ [AIR 1953 SC 235], the Supreme Court held that “no case can be decided on ground or facts outside the pleadings”. Similarly, issues arise when a material proposition of fact or law is **R.S.A.Nos. 1187 & 1188 of 2005** ## **-: 7 :-** affirmed by one party and denied by the other. So in the absence of material proposition of fact constituting ingredients of irrevocable licence under Section 63B of the Indian Easement Act,1882, in the pleadings the trial court is justified in not framing an issue on that claim. Thus, on an analysis of the pleadings in both cases and the relief sought for, I have no hesitation to hold that there is no pleadings or reliefs, as claimed by the plaintiff before the trial court and trial court is justified in not considering such a claim during trial. 8. In the above view, the appellate court is justified in rejecting the claim before the appellate court. I do not find any reason to interfere with the concurrent findings of the courts below. No other question of law arises for **R.S.A.Nos. 1187 & 1188 of 2005** ## **-: 8 :-** consideration in this appeal. Hence, this Regular Second Appeal is dismissed accordingly. Sd/- **K. HARILAL,** **JUDGE** DST //True copy// P.A. To Judge