R.S.A. No.1417 of 2011

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE T.R.RAVI` ``` FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 ``` ## `RSA NO. 1417 OF 2011` ``` AGAINST THE JUDGMENT AND DECREE IN AS 264/2007 OF II ADDITIONAL ``` ``` DISTRICT COURT, PALAKKAD ``` ``` OS 423/1997 OF MUNSIFF COURT, CHITTUR ``` ## `APPELLANTS/APPELLANTS 2 AND 3/DEFENDANT 4 & 5:-:` - `1 SADANANDAN,(DIED LHRS IMPLEADED) S/O.RANGANATHAN PILLAI,KIZHAKKETHARA,PALLAVUR,CHITTUR TALUK,PALAKKAD DISTRICT.` - `2 KANNAN @ SURESH BABU, S/O.LATE BALASUBRAMANIAN,KIZHAKKETHARA,PALLAVUR,CHITTUR TALUK,PALAKKAD DISTRICT.` ## `BY ADV SRI.K.RAMACHANDRAN` ## `RESPONDENTS/RESPONDENTS & 1ST APPELLANT/PLAINTIFFS & DEFENDANTS 1, 2` ## `AND 3` - `1 P.R.CHEMPAKAVALLY ,(DIED) (LRs IMPLEADED) W/O.K.A.VENKITACHALAM,KOZHINJAMPARA DESOM,KOZHINJAMPARA VILLAGE,CHITTUR TALUK,PALAKKAD DISTRICT, PIN- 678 555.` - `2 P.R.SAROJINI W/O.NARAYANASWAMI,HOUSE NO.14/40M CIVIL LINES,KANPUR,UTTAR PRADESH. 208 001.` - `3 P.R.VASANTHAKUMARI W/O.RAJAMOORTHY,CHULLIMADA,PUDUSSERY AMSOM DESOM, PALAKKAD TALUK,PALAKKAD DISTRICT- 678 623.` - `4 P.R.AMRITHAVALLI,(DIED) W/O.SUKUMAR,PALLAVOOR AMSOM,CHITTUR TALUK. 678 688` - `5 P.R.SANTHANALAKSHMI MANCHIRA,KOLLENGODE VILLAGE, CHITTUR TALUK,PALAKKAD DISTRICT - 678 506.` - `6 P.R.PADMAVATHY, W/O NATARAJAN, KERALA STREET, KOPPAM AMSOM & DESOM, PALAKKAD TALUK, PALAKKAD DISTRICT.678001.` - `7 KALPAKAVALLI W/O.SIVAKUMAR,VELLANTHARA ,CHITTUR TALUK, PALAKKAD DISTRICT 678 101.` ``` RSA NO. 1417 OF 2011 ``` ``` 2 ``` - `8 MAHALINGAM S/O.LATE RAMANATHAN PILLAI,KIZHAKKETHARA PALLAVUR,CHITTUR TALUK. 678 101.` - `9 JYOTHINATHAN S/O.LATE RANGANATHAN PILLAI, KIZHAKKETHARA,PALLAVUR,CHITTUR TALUK, PALAKKAD DISTRICT. 678 101.` - `10 JAYARAMAN, (DIED), S/O.RANGANATHAN PILLAI,KIZHAKKETHARA,PALLAVUR,CHITTUR TALUK, 678 101.(DELETED) RESPONDENT NO.10 IS REMOVED FROM THE PARTY ARRAY OF APPEAL AT THE RISK OF APPELLANTS AS PER ORDER DATED 20.09.2019 IN IA.NO.3/2019.)` - `11 ADDL.R11.VENKITACHALAM. S/O.ARUMUGHAM PILLAI, 2/9, DHANALAKSHMI NAGAR, VINODH ILLAM, NARASIMHANAIKAN PALAYAM, COIMBATORE-31.` - `12 ADDL.R12.KALAIVANI V., W/O.SUBRAMANIAN,KRISHNA NIVAS, ERATTAYAL, KODUMBU P.O., PALAKKAD DISTRICT.` - `13 ADDL.R.13.RAJAGOPAL.V, S/O.VENKITACHALAM, 2/9, DHANALAKSHMI NAGAR, VINODH ILLAM, NARASIMHANAIKAN PALAYAM, COIMBATORE-31.` - `14 ADDL.R.14.INDRANI V., W/O.MOHAN, 23, PUTHUVEETTIL CHAND, (NEW HOUSE LANE), KALLAKURICHI P.O., VILIPPURAM DISTRICT, TAMIL NADU, PIN-606 202.` - `15 ADDL.R15.SUNU S., W/O.G.PURUSHOTHAMAN, 11/78, S.T.BHAVAN, ATHIKKUZHY, CHITTUR P.O., PALAKKAD DISTRICT.` - `16 ADDL.R16.SREEJITH.S, S/O.LATE SUKUMAR, 11/78, S.T.BHAVAN, ATHIKKUZHY, CHITTUR P.O., PALAKKAD DISTRICT.` ``` (LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 11 TO 14 AND LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 15 AND 16, AS PER ORDER DATED 21.11.2017 IN IA.3050/2014 AND IA.3048/2014 RESPECTIVELY). ``` ``` RSA NO. 1417 OF 2011 ``` ``` 3 ``` ``` 17ADDL.R17.B.PUSHPALATHA, W/O.LATE SADANANDAN,AGED 54, KIZHAKKETHARA, PALLAVUR (PO), PIN-678 643. 18ADDL.R18.S.RAJIV, S/O.LATE SADANANDAN,AGED 34, KIZHAKKETHARA, PALLAVUR (PO), PIN-678 643. 19ADDL.R19.S.GOURI, D/O.LATE SADANANDAN,AGED 26, KIZHAKKETHARA, PALLAVUR (PO), PIN-678 643. ``` ``` (LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL.RESPONDENTS 17 TO 19 AS PER ORDER DATED 17.12.2019 IN IA.5/2019.) ``` ``` R3, R5 TO 7 BY ADVS.SRI.LIJU. M.P SRI.SAJAN VARGHEESE K.- (ADDL.R11 TO R14, R15, R16). ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 1417 OF 2011 ``` ``` 4 ``` ## **T.R. RAVI, J.** **--------------------------------------** R.S.A. No.1417 of 2011 ---------------------------------------------------Dated this the 16[th] day of June, 2023 ## **JUDGMENT** The second appeal was originally filed by the defendants 4 and 5 in the suit. The first appellant died and the contest at present is only by the fifth defendant, who is the second appellant. 2. The plaint schedule property which consists of five shop rooms originally belonged to one Ranganathan Pillai. The plaintiffs are the seven daughters of the Ranganathan Pillai. Defendants 1 to 4 are sons of the Ranganathan Pillai and the fifth defendant is the grand son of Ranganathan Pillai. The properties were purchased by Ranganathan Pillai in 1957 at a time when the sons were minors, going by the ages shown in the plaint. The building was constructed with four shop rooms initially and later another shop room was added. According to ``` RSA NO. 1417 OF 2011 ``` ``` 5 ``` the plaintiffs, these shop rooms were being occupied by the sons of Ranganathan Pillai on permission granted by him to conduct business. Ranganathan Pillai executed an assignment deed on 16.11.1996, assigning the property to his daughters. Ext.A4 notice was issued on 26.02.1997 by the daughters revoking the permission granted by the previous owner to the defendants to occupy the shop rooms and asking them to give vacant possession. It was thereafter that the suit was filed. 3. Defendants have filed written statements. It is contended that the property was purchased by the father as the eldest member of the Hindu undivided family on behalf of the family, as manager. It was specifically pleaded that the building was constructed by the Ranganathan Pillai and his sons together. The claim is one of co-ownership and it is also stated that Ranganathan Pillai did not have any right to transfer the property in favour of the plaintiffs. The fifth defendant, who is the second appellant, in his written statement has specifically pleaded that the plaintiffs do not have any right to revoke the ``` RSA NO. 1417 OF 2011 ``` ``` 6 ``` permission granted by Ranganathan Pillai and that he is holding the property on an irrevocable licence and is not liable to give vacant possession to the plaintiffs. The above contention is taken as an alternate contention, ie. if the court finds that the property originally belonged to Ranganathan Pillai and not to a coownership of Ranganathan Pillai and his sons. The fifth defendant has not mounted the box and the evidence is tendered only by the first defendant, who was examined as DW1. The evidence also proceeds on the basis that the defendants are coowners. 4. The trial court on the evidence found that none of the defendants had any income at the time of execution of Exts.A1 and A2 in 1957 and it is admitted that the properties were purchased by Ranganathan Pillai with the income derived from his business. The court found that the property is a self acquired property and is not a co-ownership property. As regards Ext.A3, by which the property was assigned in favour of the plaintiffs, DW1 has admitted that a portion of the properties ``` RSA NO. 1417 OF 2011 ``` ``` 7 ``` which were acquired as per Exts.A1 and A2 were assigned by Ranganathan Pillai in favour of the mother of the second appellant herein and one Narayanan, who is another son of Ranganathan Pillai. Admittedly, the above assignments have not been challenged by any of the defendants on the ground that they are co-ownership properties and Ranganathan Pillai did not have a right to execute the document. This again has been found to be another valuable piece of evidence to show that the property had been acquired by Ranganathan Pillai in his personal capacity. Ext.A3 is challenged on the ground that, the same was obtained by exerting undue influence and coercion and by fraud. The trial court found that there was no specific pleading in the written statement on the above aspect. It has also come out in evidence that Ranganathan Pillai is a man of prudence, able to manage things and educated. It is also found that the defendants failed to establish that the plaintiffs were in any dominating position so as to get Ext.A3 executed in their favour. The court also noticed that there is no pleading that ``` RSA NO. 1417 OF 2011 ``` ``` 8 ``` Ranganathan Pillai was not having the mental capacity to execute Ext.A3. 5. On the above reason, the claim regarding adverse possession was also negatived, since the plea itself is contradictory to the plea of co-ownership. The court hence decreed the suit. The defendants 1, 4 and 5 alone challenged the decree before the first appellate court and the first appellate court dismissed the appeal, confirming the judgment of the trial court. The second appeal is thereafter filed by the defendants 4 and 5 alone and since the first appellant (fourth defendant) is no more, the second appellant alone is having surviving contest. 6. The second appeal has been filed putting forward the following questions of law: (i) Were the courts below justified in granting a decree for mandatory injunction without sufficient or proper evidence on the case of the plaintiffs regarding an alleged licence by their father to the defendants? (ii) Did not the courts below err in placing the burden of ``` RSA NO. 1417 OF 2011 ``` ``` 9 ``` proof on the defendants? (iii) Did not the courts below go wrong in upholding the revocation of the alleged licence, when the alleged licensor was alive and when there is no case for the plaintiffs that the defendants have atoned to them as licensees after the alleged assignment to them by the licensor? (iv) Were the courts below justified in not even considering the plea of adverse possession raised by the defendant? 7. The counsel for the appellants laid more emphasis on the first question of law, that is, whether a suit for mandatory injunction can be preferred without any proper evidence regarding the licence by Ranganathan Pillai to the defendants. The third question of law does not really arise, since it has been found on evidence that even though Ranganathan Pillai was alive, he had already transferred the property as per Ext.A3. The submission of the counsel is that the fifth defendant’s father died much before the suit and Ext.A3. As such, the fifth defendant cannot be termed as a licensor and can only be treated as a trespasser. In the above circumstances, it is contended that a ``` RSA NO. 1417 OF 2011 ``` ``` 10 ``` suit for mandatory injunction will not lie and a suit for recovery of possession ought to have been filed. Reliance is placed on a Division Bench judgment of this Court in **Aspinwall & Co.Ltd. v. Soudamini Amma** (1974 KLT 681). 8. The counsel for the respondents on the other hand submitted that in the case of a revocation of a licence, law does not prohibit filing of a suit for mandatory injunction. The counsel relies on the decision of this Court in **Rajappan v. Veeraraghava Iyer** (1969 KLT 811), **Ayissa Umma V. Ami** (1991 KLT 98), **Raveendran vs. Muhammedali** [2010 (1) KHC 500] and the judgment of the Hon’ble Supreme Court in **Joseph Severance And Ors v. Benny Mathew and Ors** [2005 (4) KLT 290(SC)] in support of the contention. 9. In **Aspinwall** (supra) this Court laid down a definite test for the purpose of deciding whether a suit for mandatory injunction or a suit for recovery of possession should be filed. The court held that if on the expiry of the licence an assertion of a hostile title is made by the licensee and the licensor sleeps ``` RSA NO. 1417 OF 2011 ``` ``` 11 ``` over the matter, then the occupation of the licensee can be considered to be that of a trespasser and that in such circumstances, a suit for recovery of possession alone will be the remedy. In the case on hand, the contention is that the appellant is a co-owner and the alternate contention is that, if the court finds against co-ownership, the appellant is holding under an irrevocable licence. The further contention is that the plaintiffs are not entitled to revoke the licence. It is not a case that the appellant pleads that he is in possession by assertion of a hostile title after the expiry of the licence and that the licensor has slept over his right. The finding of the court below regarding the title of Ranganathan Pillai does not call for any interference. The transfer in favour of the daughters also cannot be held to be bad or vitiated by any circumstances. If the appellant had a case that Ext.A3 document was executed owing to undue influence or coercion, he should have led evidence to that effect and could have also examined his grandfather, the executant, who was admittedly alive at the time of institution of the suit. Since no ``` RSA NO. 1417 OF 2011 ``` ``` 12 ``` evidence has been tendered on those lines, the transfer in favour of the plaintiffs can also not be challenged. Once Ext.A3 is held to be a valid document, it necessarily follows that the transferees are entitled to revoke the licence which had been granted by the predecessor. A notice revoking the licence has admittedly been issued immediately after the transfer in favour of the plaintiffs. As such, it can never be said that the plaintiffs have slept over their rights. 10. In such circumstances, the contention that a suit for mandatory injunction will not lie on the basis of the judgment in **Aspinwall (** Supra) cannot be sustained. The Hon'ble Supreme Court in **Joseph Severance & Ors** (Supra) has also stated the law and held that it is only if necessary action is not initiated within a reasonable time, that a suit for mandatory injunction will not lie. In **Ayissa Umma** (Supra), this Court specifically held that a suit for mandatory injunction will lie after the licence is terminated. In **Rajappan (** Supra) also this Court held that an owner of an immovable property can, on the termination of the ``` RSA NO. 1417 OF 2011 ``` ``` 13 ``` licence, maintain a suit for mandatory injunction directing the licensee to vacate the property. In view of the above decisions and the facts borne out from the records, I do not find any reason to interfere with the judgments of the court below. The appeal fails and is dismissed. **Sd/-** **T.R.RAVI JUDGE** mpm