Raseena and others v. Sameer and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 RSA NO. 644 OF 2021** **[AGAINST THE JUDGMENT & DECREE DTD.29.06.2021 IN AS 51/2014 OF SUB COURT, TIRUR, MALAPPURAM ARISING FROM THE JUDGMENT & DECREE DTD.11.4.2014 IN OS NO.256/2011 OF MUNSIFF COURT ,PARAPPANANGADI]** ## **APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 6:** 1 RASEENA AGED 49 YEARS D/O. KUTTYKAMMUVENTE PURAKKAL IMBICHI BAVA, RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 2 RAJEESH AGED 33 YEARS S/O. RASEENA, KUTTYKAMMUVENTE PURAKKAL, RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 3 RAMSEENA AGED 32 YEARS D/O. RASEENA, KUTTYKAMMUVENTE PURAKKAL, RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 4 RAMEES AGED 30 YEARS S/O. RASEENA, KUTTYKAMMUVENTE PURAKKAL, RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 5 RAFEES AGED 28 YEARS S/O. RASEENA, KUTTYKAMMUVENTE PURAKKAL, RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 6 KUPPENTE PURAKKAL USMAN AGED 57 YEARS H/O. RASEENA,RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. BY ADVS. T.SETHUMADHAVAN (SR.),PREETHI. P.V.& M.V.BALAGOPAL. ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 7,8 & 9 & LRs. OF 10TH DEFENDANT:** 1 SAMEER AGED 47 YEARS S/O. THIRUTHIYIL MUHAMMED, THIRUTHIRYIL HOUSE, OMACHAPUZHA AMSOM DESOM, THROUGH POWER OF ATTORNEY HOLDER T. P. ABDUL NAZER, S/O.KUNHIMUHAMMED, THEKKE PEEDIYEKKAL,OTTUMBURAM, RAYIRIMANGALAM AMSOM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. ## R.S.A.No. 644 of 2021 ..2.. 2 HAMZA BAVA AGED 57 YEARS S/O. KUTTYKAMMUVENTE PURAKKAL IMBICHI BAVA, NEAR MOONNU PALLI, EDAKKADAPURAM, RAYIRIMANGALAM AMSOM, TANUR NAGARAM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 3 YOOSUF AGED 43 YEARS S/O. KUTTYKAMMUVENTE PURAKKAL IMBICHI BAVA, PARIYAPURAM AMSOM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 4 FASILA AGED 30 YEARS W/O. YOOSUF, PARIYAPURAM AMSOM - DESOM, TIRUR, MALAPPURAM DISTRICT - 676 302. 5 SULAIKHA AGED 53 YEARS D/O. IMBICHI BAVA, W/O. PITHAPPERI ABOOBACKER, MAPPATTIL HOUSE, PARAPPANANGADI AMSOM DESOM, MALAPPURAM DISTRICT - 676 319 6 SAINABA AGED 33 YEARS D/O. IMBICHI BAVA, W/O.ANDIKADAVATH LATHEEF, PARAPPANANGADI AMSOM DESOM, MALAPPURAM DISTRICT - 676 319 - 7 SAFIYA AGED 35 YEARS D/O. IMBICHI BAVA, W/O. PATTATH MUHAMMEDKUTTY, PACHATTIRI AMSOM DESOM, TIRUR, MALAPPURAM DISTRICT - 676 105. - 8 RAMLA AGED 48 YEARS D/O. IMBICHI BAVA, W/O. KUPPANTEPURAKKAL USMAN, MANGALAM AMSOM, KOOTAYI P. O., TIRUR, MALAPPURAM DISTRICT - 676 562. - 9 KATHEEJA AGED 58 YEARS D/O. IMBICHI BAVA, W/O. AIDUVINTEPURAKKAL ABOOBACKER, MANGALAM AMSOM, KOOTAYI P. O., TIRUR, MALAPPURAM DISTRICT - 676 562. ADV.SRI.BABU KARUKAPADATH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON - 21.10.2021, THE COURT 0N 25.10.2021 DELIVERED THE FOLLOWING: R.S.A.No. 644 of 2021 **==> picture [22 x 8] intentionally omitted <==** **J U D G M E N T** This appeal is directed against the judgment and decree dated 29.6.2021 in A.S.No.51/2014 on the file of the Sub Court, Tirur (hereinafter referred to for short as 'the first appellate court') arising from the judgment and decree dated 11.4.2014 in O.S.No.256/2011 on the file of the Munsiff's Court, Parappanangadi (hereinafter referred to for short as 'the trial court'). Appellants are defendants 1 to 6 on the file of the trial court. The first respondent is the plaintiff and other respondents are defendant Nos.7,8,9 and the legal heirs of the tenth defendant. The tenth defendant died at the time of trial. First appellant is the daughter of the tenth defendant, who was the original owner of the plaint schedule property. Appellants 2 to 5 are the children of the first appellant and sixth appellant is R.S.A.No. 644 of 2021 **==> picture [22 x 8] intentionally omitted <==** the husband of the first appellant. The parties are hereinafter referred to as referred in the original suit unless otherwise stated. 2. The plaintiff had instituted the suit to evict defendants 1 to 6 from the plaint schedule property, which is a residential house and the appurtenant land. The plaintiff mainly relied on Exts.A1 and A2 Jenmam Assignment Deeds executed by defendant Nos.9 and 10 on 17.4.2010. According to the plaintiff, defendant Nos. 9 and 10 partitioned their property between them and thereafter the property is assigned under Exts.A1 and A2 to the plaintiff. The eighth defendant is the husband of the ninth defendant. The plaintiff is the brother of the ninth defendant. It is stated that the defendants are residing in the plaint schedule property in item No.2 with the support of the tenth defendant. It is the definite case of the plaintiff R.S.A.No. 644 of 2021 **==> picture [22 x 8] intentionally omitted <==** that no rent or licence fee was fixed for their residence and they had continued possession of the premises based on a permission to reside in the house on a humanitarian consideration. According to the plaintiff, the defendants refused to vacate from the residential house and therefore, the suit was filed for mandatory injunction. They also claimed a sum of Rs.5000/- as compensation for use and occupation of the house. 3. Defendants 8 to 10 remained ex parte. Defendants 1 to 6 contested the suit. According to them, the suit was instituted in collusion with defendants 9 and 10 to defeat the rights of the defendants 1 to 6. It was contended that the assignment deed in favour of the plaintiff was executed during the pendency of O.S.No.41/2010. In O.S.No.41/2010, the tenth defendant contended that he was in possession of the plaint R.S.A.No. 644 of 2021 **==> picture [22 x 8] intentionally omitted <==** schedule property including the residential house. It was contended that defendants 1 to 6 are not residing in the plaint schedule building with the permission of the plaintiff. On the other hand, they have been residing in the house permanently with the tenth defendant. 4. Before the trial court, the Power of Attorney Holder of the plaintiff was examined as PW1 and marked Exts.A1 to A12 on the plaintiff's side. On the side of defendants 1 to 6, the first defendant was examined as DW1 and marked Exts.B1 to B5 on their side. 5. The trial court granted a decree for mandatory injunction directing the defendants to give vacant possession of the house situated in the plaint schedule property. The trial court held that the defendants 1 to 6 were claiming under the tenth defendant and their R.S.A.No. 644 of 2021 **==> picture [22 x 8] intentionally omitted <==** continuation in the premises can only be treated as a licence arrangement. The defendants 1 to 6 carried the matter in appeal. The appeal was dismissed confirming the judgment and decree of the trial court. Hence, this second appeal. 6. Heard Sri.Sethumadhavan, the learned Senior counsel for the appellants and Sri.Babu Karukapadath, the learned counsel for the first respondent-caveator/the plaintiff. 7. The learned Senior counsel for the appellants contended that in the absence of any claim that the appellants are licencees under Section 52 of the Indian Easements Act,1882, the suit instituted by the plaintiff for mandatory injunction is not maintainable. According to the learned senior counsel, the two courts R.S.A.No. 644 of 2021 **==> picture [22 x 8] intentionally omitted <==** below were not justified in granting decree for mandatory injunction in the absence of a suit on title for recovery of possession. 8. On the other hand, the learned counsel for the first respondent-caveator contended that the appellants were allowed to stay in the premises gratuitously and they would not acquire any right or interest in the property as contended by them. Since they were permitted to reside in the plaint schedule building, it was contended that the permissive occupation would not acquire any right or interest in the property even by long possession for years. 9. It is an admitted fact that the ninth and tenth defendants are the title holders of the property and they had executed Exts. A1 and A2 in favour of the plaintiff. R.S.A.No. 644 of 2021 **==> picture [22 x 8] intentionally omitted <==** They remained ex parte to the proceedings. They had no case that they did not execute Exts.A1 and A2 in favour of the plaintiff. Once they had executed Exts.A1 and A2 in favour of the plaintiff for consideration, the title would be passed over to the plaintiff. Exts.A1 and A2 would inter alia show that possession was given to the plaintiff subsequent to execution of Exts.A1 and A2 documents. Further, it was admitted that defendants 1 to 6 were residing in the house as the children and grand children of the assignor. It is a fact that defendants 1 to 6 had no case that they had title to the property in derogation of the rights of the ninth and tenth defendants. Except the fact that first defendant along with defendants 2 to 6 lived at the residence of tenth defendant as the daughter along with her family, they had no independent right or title over R.S.A.No. 644 of 2021 **==> picture [28 x 8] intentionally omitted <==** the property. Needless to say, considering the close relationship between the parties, they were allowed to reside therein with the permission of the tenth defendant. When the property was assigned in favour of the plaintiff, the permission, if any, granted to defendants 1 to 6 by the tenth defendant was withdrawn. The title was passed over to the plaintiff. Subsequent to Exts.A1 and A2, the plaintiff effected mutation in his name and paid land tax to the property. The mere contention of the contesting defendants that Exts.A1 and A2 are sham documents are not enough to cause cloud on the title. The case of the plaintiff that he permitted the defendants to continue to reside in the house after the assignment cannot be doubted, for the reason that the tenth defendant and his family members continued their residence in the plaint schedule building despite execution of Exts.A1 and A2 in R.S.A.No. 644 of 2021 **==> picture [28 x 8] intentionally omitted <==** favour of the plaintiff. The contesting defendants have no case that they have title to the property by way of adverse possession and limitation. 10. The contesting defendants are not tenants of the plaint schedule property. They are not trespassers over the plaint schedule property. They have not claimed any right over the plaint schedule property. It is clear that they were allowed to continue in the premises as permissive occupants. Such residence in the plaint schedule building is gratuitous in nature. 11. The first appellate court considered the decisions reported in **Maria Margarida Sequeria Fernandes** v. **Erasmo Jack de Sequeria (Dead) Thr.L.Rs** .(2012 KHC 4181) and **Behram Tejani and others** v. **Azeem Jagani** (AIR 2017 SC 273) and held that R.S.A.No. 644 of 2021 **==> picture [28 x 8] intentionally omitted <==** no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. The first appellate court further held that the protection of the court can only be granted or extended to the person, who has valid subsisting rent agreement, lease agreement or licence agreement in his favour. In the case on hand, the defendants 1 to 6 have no valid subsisting rent agreement, lease agreement or licence agreement in their favour. Under such circumstances, both the courts below rightly held that the suit for mandatory injunction directing the defendants to vacate is clearly maintainable. 12. In the decision reported in **Sant Lal Jain** v. **Avtar Singh** (1985 KLT OnLine 1296 (SC);(1985)2 SCC 332; AIR 1985 SC 857), the Apex Court considered an identical position as follows:- _“7.In the present case it has not been shown to us that the_ R.S.A.No. 644 of 2021 ..13.. _appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction._ _8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licence and seek his remedy separately in case he has acquired title to property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession.”_ 13. In the case on hand, the suit is in effect one for possession though couched in the form of a suit of R.S.A.No. 644 of 2021 **==> picture [28 x 8] intentionally omitted <==** mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. If the plaintiff is driven to another round of suit with all the attendant delay, trouble and expense, this Court is of the view that an attempt should be made to avoid multiplicity of suits. This second appeal cannot be entertained based on a technical contention that the suit for mandatory injunction is not maintainable for the reason that the plaintiff has not filed a suit for recovery of possession on title. The trial court and the first appellate court considered the rights of the contesting defendants and entered a finding that they had no right over the property except the fact that they were permitted to reside therein under the tenth defendant. 14. No substantial questions of law arise for consideration in this second appeal. Hence, the second R.S.A.No. 644 of 2021 **==> picture [28 x 8] intentionally omitted <==** appeal is liable to be dismissed. 15. In view of the foregoing conclusions, there is no substantial question of law involved in this appeal and the R.S.A. is dismissed in limine. However, the appellants are given six months time to vacate from the plaint schedule building provided they file an affidavit before the Executing Court agreeing to surrender the premises within six months from today without any objection whatsoever. There will be no order as to costs. Pending applications, if any, shall stand closed. Sd/- **N.ANIL KUMAR, JUDGE** MBS/