Omana v. Leela and Prabhakaran

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ``` RSA NO. 482 OF 2021 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.84/2014 OF SUB COURT, ``` ## **`CHERTHALA`** ``` AGAINST THE JUDGMENT AND DECREE IN O.S.NO.352/2011 OF ADDITIONAL ``` ## **`MUNSIFF COURT,CHERTHALA`** ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` OMANA, AGED 66 YEARS D/O KAMALAKSHI AMMA, NAMBIATHUSSERIL HOUSE, WARD NO.VIII, NORTH OF MUHAMMA GOVERNMENT HOSPITAL, MUHAMMA P.O., ALAPPUZHA DISTRICT, PIN - 688525. ``` ``` BY ADV K.JAYASANKAR (KAPRASSERY) ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** ``` 1LEELA, D/O MANKA, AGED 64 YEARS,VALAVATHIL, PERUMTHURUTHU MURI,THANNEERMUKKAM SOUTH VILLAGE, ALAPPUZHA DISTRICT, PIN 688525. 2PRABHAKARAN S/O VAVA,AGED 78 YEARS,KOCHUPARAMBIL,CHARAMANGALAM MURI,THANNEERMUKKAM SOUTH VILLAGE,ALAPPUZHA DISTRICT, PIN 688525. ``` ``` R1 BY ADVS. DR V N SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN C.PURUSHOTHAMAN NAIR VIJAYAN PILLAI P.K. ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON ``` ``` 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. NO.482 OF 2021 2 ``` ## **CR** ## **JUDGMENT** Dated this the 15[th] day of January, 2024 Defendant in O.S.No.352/2011 on the files of the Additional Munsiff Court, Cherthala, is the appellant and he has filed this Regular Second Appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, through Legal Aid Counsel. Respondents are the plaintiffs in the suit. 2. The appellant assails decree and judgment in the above suit, dated 20.9.2014 and decree and judgment in A.S.No.84/2014 on the files of the Sub Court, Cherthala, whereby, the trial court verdict was confirmed. 3. Heard both sides in detail. Perused the records. 4. I shall refer the parties in this appeal as 'plaintiffs' and 'defendant', for convenience. 5. At the time of admission, my learned predecessor, as per order, dated 6.2.2023, raised the following substantial questions of law: _(A) Whether court below went wrong in holding that_ ## **`R.S.A. NO.482 OF 2021 3`** _whatever is fixed to soil or goes with soil belongs to the soil which is held to be not applicable in India as per Patnaik v. State of Orissa AIR 1965 SC 1655?_ _(B) Whether the decree of recovery of possession granted is legal when Ext.A2 sale deed is silent about transfer of building under construction?_ 6. Coming to the brief facts, a suit was filed by the plaintiffs, who obtained title over the plaint schedule property along with a shed and other items therein, as per sale deed executed by the defendant/appellant herein. According to the plaintiffs, at the time of execution of the sale deed, an agreement was executed, whereby, the defendant was permitted to reside in the shed for a period of six months with undertaking to vacate the same, thereafter. Since the defendant did not vacate the same, relief of declaration of title over the plaint Item No.2 property, recovery of possession of the same and prohibitory injunction, were sought for. 7. Defendant resisted the suit, contending _inter alia_ that apart from the shed mentioned in the agreement, another building under construction also was in the plaint schedule property and ``` R.S.A. NO.482 OF 2021 4 ``` the defendant executed Ext.A2 sale deed for completion of the said construction. The further case of the defendant was that the plaintiffs agreed to clear the liability of the defendant under the ‘Abhaya' scheme provided by Muhamma Grama Panchayath and loan from CARD Bank. She also raised a contention that the building mentioned in the compromise is not the building under construction and the same was a temporary shed referred in the sale deed. That apart, defendant raised a contention that, she had independent right over the incomplete building, having asbestos roof and also she got irrevocable license in respect of the partly completed building in the plaint schedule property. 8. The trial court recorded evidence. PW1 and PW2 were examined and Exts.A1 to A11 were marked on the side of the plaintiffs. DW1 and DW2 were examined and Exts.B1 to B7 were marked on the side of the defendant. Exts.C1 series and X1 were also marked. Thereafter, on appreciation of evidence, the trial court decreed the suit as under: - _“In the result, the suit is partly decreed as follows:-_ - _1) The plaintiffs are entitled to get a declaration of title over the plaint item No.2 property._ - _2) The plaintiffs are entitled to a decree of permanent_ ``` R.S.A. NO.482 OF 2021 5 ``` _prohibitory injunction by restraining the defendant from causing any obstructions and peaceful possession and enjoyment of the plaint from item No.2 property by the plaintiff and from committing any waste therein._ _3) The plaintiffs are entitled to recover possession of the disputed building from the defendant on payment of Rs.25,000/-._ _4) Parties shall bear their own costs.”_ 9. Though appeal preferred, challenging the same, the same also was dismissed. 10. The learned counsel for the appellant/defendant placed a decision of the Apex Court in **Patnaik and Co.** v. **State of Orissa** , reported in **[AIR 1965 SC 1655]** , to contend that, whatever is fixed to the soil belongs to the soil, is a principle, which is not applicable in India, as held in the above decision. Accordingly, it is argued that the partly completed building is not a building covered by Ext.A2 sale deed and Ext.A3, where the defendant has independent right. It is argued further that the defendant has got irrevocable license over the same. Therefore, the verdicts impugned would require interference. 11. Going by the ratio in **Patnaik's** case (supra), after ``` R.S.A. NO.482 OF 2021 6 ``` referring two earlier decisions in **Thakoor Chunder Poramanick** v. **Ram Dhonde Bhuttacharji** reported in **[6 Suth Weekly Reports 228]** and **Narayan Das Khettry** v. **Jatindra Nath Roy Chowdhury** reported in **[LR 54 IA 218],** the Apex Court held the rules in the maxim _quicquid fixatur solo, solo cedit_ , is not applicable in India and it was held further that, in cases involving such contentions, the court must ascertain what was the intention of the parties when the property in goods belonging to one person and affixed to the property of another person got involved with reference to the facts of each case. 12. Indubitably, the principle in the maxim, _quicquid fixatur solo, solo cedit_ , means 'whatever is fixed to the soil belongs to the soil', is not applicable in India. At the same time, in order to establish independent right over a building constructed in a property, evidently owned by another person, specific pleadings and evidence are absolutely necessary. 13. In the case at hand, the defendant executed Ext.A2 sale deed in respect of the plaint schedule property and shed situated therein. But, there is no reference with regard to a building under construction, now found as one, having asbestos roof, by the ``` R.S.A. NO.482 OF 2021 7 ``` Commissioner. It is relevant to note that the defendant executed Ext.A3 document, keeping right of enjoyment over the shed, for a period of six months, with undertaking to vacate the same, thereafter. But, the contention raised by the defendant is that, the partly completed building is not one covered by sale deed and therefore, defendant has independent right over the same and the plaintiffs have no right over the same. While addressing this contention, the learned Munsiff disbelieved the evidence of DW1 negating execution of Ext.A1 agreement for sale in relation to the plaint schedule property and found that in continuation of Ext.A1, Ext.A2 sale deed was executed. It was found by the learned Munsiff that the execution of Ext.A2 and Ext.A3 were not in dispute. According to the plaintiffs, they paid consideration for the entire property including the temporary shed, electric connection and the partly completed building, having asbestos roof. The contention of the defendant is that, the property was sold out for the purpose of completing the construction work of the part completed building. Further, the defendant raised a contention that, at the time of execution of Ext.A2 sale deed, plaintiffs agreed to clear the loan liability she availed under the ``` R.S.A. NO.482 OF 2021 8 ``` ‘Abhaya’ scheme from CARD Bank and Ext.B6 series documents produced to show that the liability has been subsisting. But, during cross examination of the defendant as DW1, she admitted that the entire debt to the CARD Bank was paid off by the plaintiffs and the said liability fully discharged. 14. It is relevant to note that, earlier, the defendant filed O.S.No.292/2007 against the plaintiffs and sought the relief of injunction against the plaintiffs and Exts.B3 and B4 are the decree and judgment in the above suit. But, during evidence, DW1 given evidence that she was evicted from the temporary shed after instituting O.S.No.292/2007. But, surpisingly, she continued the suit and obtained prohibitory injunction. In fact, the evidence of DW1 lacks credence, since she had given contra versions on material aspects. 15. The learned Munsiff quoted Section 3 r/w Section 8 of the Transfer of Property Act, 1882, to hold that, even the title deed or the scheduled property attached thereof did not mention any structure in the property, which is the subject matter of transfer, the transferee would get title of the property and the structures therein. In this case, the evidence of PW1 supported by the ``` R.S.A. NO.482 OF 2021 9 ``` recitals in Ext.A1 would go to show that the defendant transferred the entire property after allowing occupation of the shed therein by the defendant for six months, on receiving consideration for the same, as per Ext.A2. It has come out in evidence that, as per the assurance given by the plaintiffs, as contented by the defendant, plaintiffs had discharged the liability towards CARD Bank. Even though the principle 'whatever is fixed to the soil belongs to the soil' is not applicable in India, when a party claims independent right over a building or a structure in a property which was sold for valid consideration to another person, the said plea should be specifically raised and proved. In this case, the learned Munsiff found that the partly completed building also is subject matter of sale, as per Ext.A2 sale deed and therefore, the plaintiffs would get title over the same. The appellate court also upheld the said contention. 16. Apart from that, another contention also raised to the effect that the defendant got irrevocable license over the partly completed building. In this connection, it is relevant to refer Section 60 of the Indian Easements Act, 1882, which deals with revocation of license. Section 60(b) provides that _‘the licensee,_ ``` R.S.A. NO.482 OF 2021 10 ``` _acting upon the license, has executed a work of a permanent character and incurred expenses in the execution’_ ; then, the license is irrevocable. So, as per Section 60(b), license is irrevocable when the licensee acting upon the license, executes work of a permanent character and incurred expenses in the execution. Therefore, in order to establish an irrevocable license, there must be specific pleadings regarding grant of license, execution of a work of permanent character and there must be evidence to show that the licensee executed a work of permanent nature in the licensed premises, acting on the license and incurred expenses thereof. In fact, none of the ingredients to establish irrevocable license, as defined under Section 60(b) of the Indian Easements Act, 1882, either specifically pleaded or proved. Going by the facts of this case, this contention appears to be contrary to the contention raised, claiming absolute title over plaint Item No.2. 17. Thus, it has to be concluded that the independent right claimed by the defendant over plaint Item No.2, partly completed building, or irrevocable license over the same, not at all established. ``` R.S.A. NO.482 OF 2021 11 ``` 18. Therefore, the courts below never held that, whatever fixed to the soil or goes with soil, belongs to the soil, as against the ratio in **Patnaik** ’s case (supra). But, the courts below found on evidence that, as per Ext.A2 sale deed, plaintiffs obtained absolute title over the plaint schedule property and the structures therein inclusive of Item No.2, for valid consideration paid. The courts below also negatived the independent title claimed by the defendant in respect of Item No.2 and also irrevocable license claimed by the defendant. Therefore, the trial court rightly granted declaration of title over plaint Item No.2 property, recovery of possession and prohibitory injunction in favour of the plaintiffs on the finding that plaint Item No.2 is one covered by Ext.A2. Therefore, it could not be held that recovery of possession granted by the courts below is not legal. Summing up, it is held that the verdicts under challenge do not require any interference and this Regular Second Appeal found to be meritless and the same is accordingly dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. ## **`R.S.A. NO.482 OF 2021 12`** Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb