Pauloose Nediyathu Veettil and K.P. Mathew vs. K.C. John

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934** ## **RSA.NO. 976 OF 2012 ()** **--------------------------------AS.111/2010 OF ADDITIONAL DISTRICT COURT-II, MAVELIKKARA OS.257/2000 OF SUB COURT, MAVELIKKARA** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS:** **-----------------------------------------------------------------** **1. PAULOSE NEDIYATHU VEETTIL, AYIKKATTU MURI, CHINGOLI VILLAGE.** **2. K.P.MATHEW S/O.POULOSE, NEDIYATHU VEETTIL, AYIKKATTU MURI CHINGOLI VILLAGE.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP** ## **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **----------------------------------------------------------------** **K.C.JOHN S/O.CHACKO, KANIYANTHARA VEETTIL, MUTTOM MURI CHEPPAD VILLAGE-690 507.** **BY ADV. SRI.V.K.NANDAKUMARAN(CAVEATOR)-R.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.976 of 2012 -------------------------------------Dated this the 16[th] day of August, 2012.** ## **JUDGMENT** The second appeal arises from the judgment and decree of learned Sub Judge, Mavelikkara in O.S.No.257 of 2000, confirmed by the learned II Additional District Judge, Mavelikkara in A.S.No.111 of 2010. 2. Respondent/plaintiff sued the appellants for eviction from the building described as plaint schedule item No.2. Respondent claimed that the building situated in plaint schedule item No.1 belongs to him. He claimed that he constructed plaint schedule item No.2 with the funds provided by the 1[st] appellant/1[st] defendant and for the said purpose `94,405.25 was received from the first appellant. There was an agreement that on completion of construction of item No.2, the 1[st] appellant would execute a rent deed but, he did not do so. Hence the respondent issued Ext.A5, notice demanding eviction with rent at the rate of `300/- per month. Since the respondent thought that there is some defect in the said notice, a fresh notice (Ext.A7) was issued demanding eviction. Since the demand was not complied, respondent filed the suit. 3. Appellants while resisting the suit filed a counter claim. According to them, they constructed item No.2, building in the plaint schedule item No.1, that the construction is of permanent in character and hence the licence has 2 RSA No.976/2012 become irrevocable under Sec.60(b) of the Easements Act (for short, “the Act”). They also made a counter claim for a declaration that the 1[st] appellant has an irrevocable licence over plaint schedule item No.2 and for a decree for eviction of the appellants from the said building. 4. The trial court held that the building was constructed by the respondent though making use of the funds advanced by the appellants. But that would not entitle the appellants to claim irrevocability of licence over plaint schedule item No.2. Accordingly the counter claim was dismissed and the suit was decreed. Respondent was directed to deposit `94,692/- with interest at the rate of 6% per annum from 21.10.2000. There was a further direction to the respondent to deposit `25,000/- towards cost of the strong room constructed by the 1[st] appellant (who is running a private financing business). That judgment and decree of the trial court were confirmed by the first appellate court. Hence the second appeal. 5. The learned counsel for the appellants has argued that the courts below have proceeded on a wrong assumption that the appellants have denied the title of the respondent over plaint schedule item No.2. It is argued that what is claimed by the appellants is only irrevocability of license so far as the 1[st] appellant is concerned, as against plaint schedule item No.2. It is argued by the learned counsel that the documents relied on by the respondent at the best proved that he is the title holder of item No2. It is also argued that the documents produced are all after Ext.A5, notice and hence not decisive. 3 RSA No.976/2012 The learned counsel has invited my attention to Sub-sec.2 of Sec.8 of the Construction Workers' Welfare Fund Act (for short, “the Welfare Fund Act”) to contend that the respondent who is a contractor by profession has constructed the building, paid contribution to the welfare fund of workers not as owner of item No.2 but, as contractor engaged by the appellants for construction. 6. Sec.8 of the Welfare Fund Act relied on by the learned counsel deals with the contribution to the fund and Sub-sec.(2) says that an employer shall contribute one percent of the cost of construction work undertaken by him to the fund. The expression 'employer' is defined in Sec.2(g) of the said Act and going by Clause (ii) of Sec.2(g), an employer is a person for whom the construction work is done. 7. Attempt of the learned counsel is to show that payment to the fund made by the respondent as per Ext.A11 is not in his capacity as the owner of item No.1 but, as the contractor who was entrusted with the the construction work of item No.2. 8. In the plaint it is averred in paragraph 4 that while the respondent was in the process of construction of the building in plaint schedule item No.1, appellants requested that for the convenience of the 2[nd] appellant, an additional room be constructed and for the said purpose, the 1[st] appellant entrusted necessary funds. In paragraph 5, it is further averred that for the finance business (of the 1[st] appellant), in the supervision and direction of the respondent 4 RSA No.976/2012 the 1[st] appellant has constructed a safe. As against that plea, what is contended by the appellants in paragraph 12 of the written statement is that it was agreed that funds provided by the 1[st] appellant would be returned by the respondent and thereon after mutual discussion between the appellants and the respondent, ground rent would be paid as agreed upon by the parties. 9. Going by the above version of the appellants in paragraph 12 of the written statement, it is clear that even as per version of the appellants, funds advanced by the 1[st] appellant (obviously for construction of item No.2) was agreed to be returned to the 1[st] appellant and that was to be followed by an agreement for payment of ground rent (it admittedly did not happen). It is idle for the appellants to contend in view of the specific plea taken in paragraph 12 of the written statement either that they constructed item No.2, building in plaint schedule item No.1 or that they caused the building to be constructed by the respondent who is a contractor. On the otherhand, it is clear even from the written statement of the appellants that the construction was made by the respondent (may be because he is a contractor even without the assistance of anybody else he could manage construction work) and the funds were provided by the 1[st] appellant on condition that it would be returned to the 1[st] appellant. 10. Sec.60(b) of the Act refers to irrevocability of license when the licensee, acting upon the license has put up work of permanent character. In otherwords, to avail that protection it must be a case where the licensee has 5 RSA No.976/2012 constructed the building. That does not necessarily be that the licensee himself should undertake the work and not through a contractor. That obviously involves some remuneration to the contractor (unless he agreed to do it as gratis). But there is no such plea or evidence. Ext.A11 must be viewed in the above background. As per Ext.A11, contribution to the fund (for construction workers) was paid by the respondent. Going by Sec.2(g)(ii) of the Welfare Fund Act, the person for whom construction work is done is also an 'employer'. Therefore, respondent satisfies the definition of 'employer' and he was bound to pay welfare fund. If the construction was by or at the instance of the appellants, they would have been obliged to pay the contribution. 11. A further fact which I must notice is that (may be after Ext.A5, notice) various documents produced by the respondent would show that he constructed the building and the building was assessed in his name. Electricity connection was also taken in the name of the respondent. Exts.X1 and X2 show that the respondent consented to the appellants doing business in item No.2. Obviously, it is because respondent was the owner of the building. I do not forget that what is pleaded by the appellants is irrevocability of license which having regard to the circumstances above stated, I found, cannot be sustained. 12. It is seen that both sides brought in several witness to say that the construction was done by them as they pleaded and the learned Munsiff was of the view that in view of the rival and contradictory evidence those witnesses gave, it is appropriate that said oral evidence is eschewed and the 6 RSA No.976/2012 dispute is resolved with reference to the documents the parties have produced. Having regard to the evidence adduced by the parties and in particular the contention raised by the appellants in paragraph 12 of the written statement I find myself unable to accept the contention that the construction was made by or on behalf of the appellants. 13. True, there is a contention that the 1[st] appellant has constructed a safe and counter (for his private finance business) in that part of item No.2 occupied by him). That is practically admitted by the respondent also but merely for the reason that the said safe and counter is constructed by the 1[st] appellant with the permission of the respondent in item No.2, that would not enable the appellants to seek protection of Sec.60(b) of the Act. The trial court has directed the respondent to refund the sum of `94,692/- with interest. There is a further direction to the respondent to refund the sum of `25,000/- spent by the 1[st] appellant for construction of the strong room. 14. Having heard the learned counsel and gone through the judgments under challenge, copy of the plaint and written statement, I do not find any substantial question of law involved in this appeal requiring decision by this Court. 7 RSA No.976/2012 15. The leaned counsel has requested that in view of the decision this Court has taken, appellants may be given time to vacate the premises. The learned counsel submitted that the 1[st] appellant is running a private finance business and that if he is now thrown out, that would affect his business. 16. Having heard the learned counsel I am inclined to give the appellants some time to vacate the premises. Resultantly the Second Appeal is dismissed with the following directions: i. Appellants are granted four (4) months time from this day to vacate that part of plaint schedule item No.2 under their occupation. ii. It is open to the appellants to request the executing court for further time to vacate the premises in case such a course is required and it will be open to the executing court to decide on that request after hearing both parties. iii. It is directed that during the time granted hereby, appellants shall not create documents with respect to item No.2, commit mischief therein or induct third parties into possession thereof. 8 RSA No.976/2012 iv. In case the above condition is violated it will be open to the executing court to proceed with execution notwithstanding the time granted hereby. v. Execution proceedings if any for eviction of the appellants during the said period of four (4) months or till the condition above stated is violated or till the appellants vacate the premises, whichever is earlier, will stand in abeyance. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** ## **cks**