K.S. PAVANAN v. VIJAYAKUMAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934** ## **RSA.NO. 668 OF 2012 ()** **-----------------------------------AS.56/2003 OF SUB COURT, CHERTHALA OS.133/1998 OF PRINCIPAL MUNSIFF'S COURT, CHERTHALA** ## **APPELLANT(S)/APPELLANT/DEFENDANT:** **------------------------------------------------------------** **K.S. PAVANAN,, AGED 62 YEARS S/O.SANKARAN,SANEESH BHAVAN FROM KOCHUPARAMBIL PANAVALLY VILLAGE,CHERTHALA TALUK.** **BY ADVS.SRI.ABRAHAM P.GEORGE SMT.M.SANTHY** ## **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **-------------------------------------------------------------** **VIJAYAKUMAR,, AGED 60 YEARS S/O.PETER,CHIRAYIL VEEDU,ERAMALLOOR MURI EZHUPUNNAVILLAGE VILLAGE,CHERTHALA TALUK.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.668 of 2012 ==================================== Dated this the 04[th] day of June, 2012** ## **J U D G M E N T** Defendant in O.S. No.133 of 1998 of the court of learned Munsiff, Cherthala is aggrieved by the decree for mandatory injunction for removal of the house in the suit property as confirmed by the learned Sub Judge, Cherthala in A.S. No.56 of 2003. 2. Respondent claimed that he purchased the suit property from the appellant as per Ext.A1, sale deed No.4658/1995 dated 16.11.1995 and at that time it was agreed that appellant would continue to occupy the thatched shed in the property for three months and thereafter, remove the thatched shed at his expense. Respondent claimed that he is in possession of the suit property. He issued Ext.A2, notice dated 08.12.1997 (Ext.B1 is its original) demanding the appellant to remove the thatched shed in the suit property. 3. Appellant contended that he had borrowed money from the respondent to discharge liability of a bank and at that time, Ext.A1 was got executed by fraud and misrepresentation. Possession of the property was not given to the respondent. ## **R.S.A. No.668 of 2012** ## -: 2 :- Appellant continued in possession of the property and occupation of the thatched shed situated therein. It is his case that he happened to sign Ext.A1 on the representation made by the respondent that it is a deed of mortgage as security of the loan transaction. He had not read the document before it was signed. He also claimed that the document was executed as a security for the loan transaction. 4. Respondent gave evidence as P.W.1 and proved Exts.A1 to A5. Exhibit A5 was produced to dispel the contention of appellant that value of the property referred to in Ext.A1 is grossly inadequate. 5. Appellant gave evidence as D.W.1 and proved Exts.B1 to B11. He also examined D.Ws.2 to 6 to prove his case. Exhibits X1(a) and X1(b) are summoned from the Trust in favour of which appellant claimed that he had executed a mortgage for the loan availed from that Trust. 6. Trial court after consideration of the evidence found in favour of the case of respondent and granted a decree. That was confirmed by the first appellate court. 7. Learned counsel contends that even the frame of the suit is not correct since having regard to the recitals in Ext.A1 and ## **R.S.A. No.668 of 2012** ## -: 3 :- the admitted circumstances remedy of the respondent was to sue for recovery of possession on the strength of his title. Learned counsel has placed reliance on the decision in ## **Aspinwall and Co. Ltd. v. Soudamini Amma** (1974 KLT 781). It is also contended that evidence on record is sufficient to show that Ext.A1 was either got executed fraudulently or as security for the due repayment of the loan. 8. So far as validity and due execution of Ext.A1 is concerned, appellant admits that he has executed the document though according to him he was made to believe that it is a deed of mortgage as security for the loan availed by him from the respondent. He stated that he has signed the document without reading it. In the written statement he has a contention that he is illiterate. 9. Though appellant has a contention that he is illiterate, it is not clear whether he is able to read Malayalam in which Ext.A1 is written. If his contention is that he was made to believe that Ext.A1 is a deed of mortgage and not a deed of conveyance and without reading it he has signed it, his plea is one of non-est factum regarding which this Court in **Muthu v. Cherchi** (1990 [1] KLT 416) has stated that the said plea is available only to ## **R.S.A. No.668 of 2012** ## -: 4 :- persons who are blind, illiterate or persons who by fraudulent means were not able to read the document. A plea of non-est factum is available only to persons who are either illiterate or blind or due to any temporary or permanent reasons was unable to read and understand the document or by fraud was prevented from reading or understanding it. If on the other hand appellant signed the document without reading it due to his own negligence, he takes the risk of signing the document without reading it, he is bound by it and cannot raise a plea of non-est factum. 10. Other contention raised is that Ext.A1 was executed as a security for the due repayment of the loan. As regards the loan transaction with the respondent, what is available is only the evidence of D.W.1 which is denied by the respondent when examined as P.W.1. I must also notice the provision in Ext.A1 that after three months appellant shall remove the thatched shed in the property. If the document was merely intended as security it is unlikely that such provision would be made in Ext.A1. 11. D.W.2 examined by the appellant is a worker of his and stated that possession of the property was with the appellant. D.W.4 is the Secretary of the Trust who proved ## **R.S.A. No.668 of 2012** ## -: 5 :- Ext.X1 series for payment of loan to the appellant from the Trust. Exhibit X1 series, Exts.B9 and B10 series are produced to show that nuts were plucked from the coconut tress standing in the property for discharge of the liability referred by D.W4 in his evidence. D.W.4 has stated that he is residing 20 feet away from the suit property. D.W.5 proved Ext.B11, copy of sale deed executed in favour of one Subair and another (obviously to show that consideration mentioned in Ext.A1 was alarmingly low). Trial court found that the suit property abuts the main road. D.W.6 is a coconut tree climber examined by the appellant to prove his possession. 12. Respondent when confronted with Exts.X1 series, B9 and B10 series stated that he is residing far away from the suit property and had no occasion to go there. Learned counsel for appellant contended that respondent is not residing that much far away from the suit property so that he was unaware of what was happening in the suit property, having allegedly acquired it as per Ext.A1. It is also pointed out that in the meantime the thatched roof of the shed was replaced with asbestos sheet. 13. The above arguments are raised with reference to the contention that the respondent ought to have brought a suit for ## **R.S.A. No.668 of 2012** -: 6 :- ## recovery of possession. It is held in **Aspinwall and Co. Ltd.** **v. Soudamini Amma** (supra) that a mere licence only makes an act lawful which without it would be unlawful and that 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 control or possession of the property through his licensee. 14. The same is the principle laid down in **Ayissa v. Ami** (1990 [1] KLT 98) and **Joseph Severance v. Benny Mathew** (2005 [4] KLT 290 (SC). There, it is held that on termination/expiry of the licence the licensee is entitled under Section 63 of the Easements Act for a reasonable time to vacate. What is reasonable time would depend on the facts and circumstances of each case. It is also held that a suit for mandatory injunction against a licensee whose licence had expired or terminated is possible before the licensee settle downs to his own possession asserting hostile title against the licensor. 15. In this case evidence adduced by the appellant to show that he had permitted the Trust to take usufructs from the **R.S.A. No.668 of 2012** ## -: 7 :- property for discharge of liability is admittedly after Ext.A1. It is seen that Ext.B9 and B10 series, receipts are issued in favour of the appellant only after respondent issued Ext.A2, notice dated 08.12.1997. If that be so, assertion of right over the property at the instance of appellant comes only after respondent demanded the appellant to vacate the suit property by Ext.A2, notice dated 08.12.1997 and not before that. Appellant cannot by his unilateral act immediately after 08.12.1997 compel the respondent to bring a suit for recovery of possession. 16. True that the provision in Ext.A1 is that on the expiry of three months appellant shall remove the thatched shed at his expense and Ext.A1 being dated 16.11.1995 the said period expired by 16.12.1996 while Ext.A2, notice is dated 08.12.1997. I stated even that under Sec.63 of the Easements Act a licensee is entitled to reasonable time to vacate and what is reasonable time should depend on the facts and circumstance of each case. There is no evidence to show that since the date of expiry of the licence till Ext.A2, notice dated 08.12.1997 appellant had settled down to independent possession of the property asserting hostile title to the respondent. If that be so, the suit brought on the strength of Ext.A2, notice dated 08.12.1997 for mandatory ## **R.S.A. No.668 of 2012** ## -: 8 :- injunction cannot be said to be bad in law. 17. So far as other contentions are concerned, I stated that the plea of non-est factum cannot be raised having regard to the facts and circumstances. Appellant has also not taken any step to declare the title he claims over the suit property notwithstanding that Ext.A1 stands against his claim. In the circumstances trial court was correct in granting a decree for mandatory injunction which the first appellate court has confirmed. 18. On hearing the learned counsel and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court. ## Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv