S. Babu v. P. Karthik Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** ## **RSA NO. 142 OF 2022** **AGAINST THE ORDER/JUDGMENT IN AS 44/2016 OF III ADDITIONAL DISTRICT COURT,** ## **PALAKKAD** **OS 291/2013 OF MUNSIFF COURT, CHITTUR** ## **APPELLANT/APPELLANT/DEFENDANT:** **S.BABU AGED 47 YEARS S/O.CHEMMU ROWTHER, HOUSE NO.V/288, KAKKAYUR ROAD, PITTUPEDIKA, KODUVAYUR VILLAGE, PALAKKAD DISTRICT. BY ADVS. K.MOHANAKANNAN M.A.ZOHRA** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **P.KARTHIK KUMAR AGED 28 YEARS S/O.LATE PARUSURAMAN, HOUSE NO.277, B.K.CHETTY STREET, COIMBATORE, COIMBATORE DISTRICT - 641 001.** **BY ADV P.K.MOHANAN(PALAKKAD)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2022, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.142/2022 **2** ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.44/2016 on the file of III Additional District Court, Palakkad, which in turn arose out of the judgment and decree in O.S.No.291/2013 on the file of Munsiff's Court, Chittur. 2. The appellant is the defendant in O.S.No.291/2013, which was tried along with O.S.No.10/2014 filed by the appellant herein. O.S.No.291/2013 was decreed and O.S.No.10/2014 has been dismissed. Against which, two appeals; A.S.Nos.44/2016 against the decree in O.S.No.291/2013 & A.S.No.45/2016 against the dismissal of O.S.No.10/2014 were filed before the District Court, Palakkad. Both appeals were heard together and a common judgment was passed. Now the appellant filed this Second Appeal only against the dismissal of A.S.No.44/2016. The parties would hereinafter be referred as per their status before the trial court. 3. O.S.No.291/2013 has been filed by the plaintiff seeking for a mandatory injunction for evicting the defendant from the plaint schedule property. Plaint schedule property along with the R.S.A.No.142/2022 **3** old house belonged to the grandmother of the plaintiff by name Ponnukutty Amma, who obtained the same as per Gift Deed No. 572/1957 of S.R.O. Koduvayur. After her death, the property devolved upon her husband Chemmu Rawther and children namely Mani, Sunitha, Manjula, Valarmathi and also the defendant. All the legal heirs of Ponnukutty Amma released their right over the plaint schedule property in favour of plaintiff's mother Valarmathi as per Release Deed No.2885/2010 of SRO Koduvayur. Subsequently, she assigned her right over the property to the plaintiff for valid consideration as per Sale Deed No.3302/2010 and accordingly plaintiff is in actual possession and enjoyment of the property. Defendant is the maternal uncle of the plaintiff. After the purchase of property by the plaintiff defendant sought three months time to find out an alternate accommodation for shifting the residence. Considering the relationship between the parties three months time was given. Since the plaintiff wanted the house for his own occupation the permission given for occupation to the defendant was cancelled and defendant was requested to vacate the plaint schedule property. But he did not heeded to the request and thereafter a lawyer notice dated 08.07.2013 was issued terminating the R.S.A.No.142/2022 **4** licence and demanding the vacant possession of the premises. Though notice was served, he did not send any reply nor vacated the premises and thereafter suit has been filed. 4. Defendant filed written statement contending that he is not residing in the property on the permission of the plaintiff as alleged. The property belonged to Ponnukutty Amma and after her death devolved upon her legal heirs. During the lifetime of Ponnukutty Amma and her husband Chemmu Rawther they availed a loan of Rs.50,000/- from South Indian Bank, Peruvemba mortgaging the property to pay the debts to Jayaraj, husband of Sunitha. Since the loan was not repaid the bank initiated revenue recovery proceedings and plaintiff's mother agreed to repay the loan amount with interest and accordingly paid a sum of Rs.1,25,000/- to the bank. At that time, as a security, as demanded by plaintiff's mother, all the legal heirs of Ponnukutty Amma executed a Release deed in favour of plaintiff's mother Valarmathi. The understanding was that on repayment of the amount she would execute a document in favour of the legal heirs of Ponnukutty Amma. But inspite of the return of the amount she did not execute the document in favour of the legal heirs. On the other hand, in collusion with the plaintiff, she R.S.A.No.142/2022 **5** executed Sale Deed No.3302/2010 transferring the right in favour of the plaintiff. The sale deed in favour of the plaintiff is void and not acted upon. Plaintiff has no right or possession over the property. The defendant along with his brother is residing in the property. The defendant was born and brought up in the plaint schedule property and is residing there as of right and is not liable to be evicted. 5. Both the suits were tried together taking O.S.No.291/2013 as the leading case. PWs 1 and 2 examined and Exts.A1 to A5 series marked from the side of the plaintiff. DWs 1 and 2 examined and Exts.B1 and B2 marked from the side of the defendant. 6. On evaluating the facts, circumstances and evidence, the learned Munsiff found that the defendant is only a licencee in the plaint schedule property and on revocation of the licence he is liable to be evicted from the plaint schedule property by way of mandatory injunction. Accordingly, the suit was decreed as prayed for. Aggrieved by the same, the defendant filed appeal and the first appellate court on re-appreciating the facts, circumstances and evidence dismissed the appeal confirming the judgment and decree passed by the trial court. R.S.A.No.142/2022 **6** 7. Having lost in both the forums the appellant/defendant approaches this Court in this Regular Second Appeal. 8. The learned counsel for the appellant would contend that the judgment and decree passed by the courts below is against facts, circumstances and evidence adduced in this case. Mandatory injunction is sought after 2 years and 9 months of the execution of the sale deed in his favour. The relief of recovery of possession ought to have been sought, for evicting a co-owner from the ancestral property on the basis of a release deed. The defendant has not sold his right in favour of the plaintiff's mother. Plaintiff has not proved the source of money to purchase the property on 05.10.2010. The property was released from the bank only after execution of Ext.A1. The Release Deed No.2885/2010 was executed in favour of the plaintiff's mother on an understanding that on repayment of the amount advanced by the plaintiff's mother she would execute a document in favour of the legal heirs Ponnukutty Amma. It is also contended that though the amount was repaid in installments she did not execute the document in favour of the legal heirs. But executed a sale deed in favour of the plaintiff, who is none other than her son. R.S.A.No.142/2022 **7** 9. Learned counsel for the plaintiff on the other hand would support the judgment and decree passed by the courts below and would vehemently contend that defendant was permitted to occupy the house being the maternal uncle of the plaintiff. The permission was given to occupy the house only for three months. But inspite of revocation of the licence and receiving the notice revoking the licence the defendant is illegally continuing to occupy the scheduled properties. So both the courts have concurrently found in favour of the plaintiff and there is no substantial question of law emerges for consideration in this appeal. 10. Admittedly, the plaint schedule property and the old house originally belonged to the grandmother of the plaintiff Ponnukutty Amma and mother of the defendant and after her death it was devolved upon her legal heirs including the defendant. 11. Plaintiff is the son of one of the legal heirs of Ponnukutty Amma by name, Valarmathi. Ext.A1 is the release deed executed by all the legal heirs of Ponnukutty Amma releasing their right over the plaint schedule property in favour of Valarmathi. R.S.A.No.142/2022 **8** 12. The defendant raised a specific contention that Ponnukutty Amma and her husband availed a loan of Rs.50,000/from South Indian Bank, Peruvembu branch to pay the debts of husband of one of the daughters by name Sumathi mortgaging the property. Since the amount was not repaid revenue recovery proceedings have been initiated and it is contended that the mother of the plaintiff agreed to clear off the loan and remitted a sum of Rs.1,25,000/- and closed the loan account. Contention of the defendant is that Ext.A1 was executed as a security for the amount paid by Valarmathi and there was an understanding to reconvey the property on payment of the amount advanced by her. It is also contended by the defendant that though legal heirs repaid the amount, Valarmathi did not reconvey the property. But, during examination of the defendant as DW1, he would state that three siblings of Valarmathi repaid sum of Rs.25,000/- each though he could not state the exact date or period of repayment. Further he stated that it was in the year 2012. But no receipt was received. DW2 is one of the another brothers of the defendant would state in proof affidavit that Rs.1,25,000/- was repaid by all the siblings in various installments. During cross examination he would state that 4 siblings paid Rs.25,000/- in R.S.A.No.142/2022 **9** five installments. Admittedly by him no receipt was obtained from Valarmathi. Valarmathi was examined as PW2 and she denied the claim of the defendant regarding the repayment of the amount. It has come out that in Ext.A1 release deed there is no such mention regarding the understanding to reconvey the property to the legal heirs. Apart from the interested testimony of DWs 1 and 2 there is no convincing evidence to prove that there was such an understanding to re-convey the property on repayment of the amount by the legal heirs. Their evidence is also not consistent. Rightly the courts below negatived the contention of the alleged understanding to reconvey the property to the legal heirs by PW2. So also as has been rightly found by the courts below no action has been taken by the defendant for re-conveying the property inspite of the alleged repayment of the amount to Valarmathi, which is the only course open to the defendant if at all there was an understanding to reconvey the property on repayment of the amount to PW2. 13. A lawyer notice was issued by the plaintiff to the defendant and he has contended in the written statement that on receiving the notice there was settlement talk and PW2 Valarmathi agreed to re-convey the property on receipt of money. R.S.A.No.142/2022 **10** Lawyer notice is dated 06.07.2013. But DWs 1 and 2 during evidence deposed that they have repaid the amount even before 2012. So the compromise talk after receiving the lawyer notice offered as a reason for not sending the reply is also found to be not true. 14. A contention has been raised by the defendant that mandatory injunction has been sought for after 2 years and 9 months of the execution of the sale deed in favour of the plaintiff. So a suit for recovery of possession ought to have been sought for instead of filing a suit for mandatory injunction. First of all such a contention was not raised and no issue also framed in that regard. Strictly speaking this is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. [See: Joseph Severance and Ors. v. Benny Mathew and Ors ((2005) 7 SCC 667 : 2005 (4) KLT 290)]. Here the parties are close relatives and according to defendant he had been born and brought up in the house. So taking into account the fact and circumstances time taken to revoke the licence by the plaintiff in this particular case cannot be said as unreasonable. So also the specific case of the plaintiff is that after the execution of R.S.A.No.142/2022 **11** assignment deed in his favour he permitted the defendant to occupy the house for 3 months since defendant is his uncle. Ext.A5 notice was issued revoking the licence on 06.07.2013 and the suit has been filed on 13.08.2013. So as has been held in Raveendran v. Muhammedali (2010 (1) KHC 500] when period of licence is terminated or is expired by efflux of time it is open to the licensor to sue for mandatory injunction. So the contention that the suit for mandatory injunction is not maintainable cannot be sustained in law. Arrangement with the defendant already found to be licence arrangement. 15. The right and title of the plaintiff is proved through Ext.A1, the release deed, in favour of the PW2, the mother of the plaintiff, by the other legal heirs of Ponnukutty Amma and Ext.A2 is the sale deed executed by Valarmathi (PW2) in favour of the plaintiff dated 29.11.2010, Ext.A3, possession certificate, and Ext.A4, the basic tax receipt would prove the right, title and possession of the plaintiff over the plaint schedule property. 16. So in effect plaintiff could establish his right, title and possession over the plaint schedule property by the oral and documentary evidence and he has also succeeded to establish R.S.A.No.142/2022 **12** that defendant, who is the maternal uncle of the plaintiff, was permitted to occupy the plaint schedule property for a short period and thereafter though there was request for vacating the premises he failed to vacate the premises and also raised untenable contentions. 17. Ext.A5 lawyer notice would prove that permission given to the defendant to occupy the premises has been revoked and legally the defendant has no right to continue the occupation of the plaint schedule property. Hence, as rightly found by the courts below, defendant is bound to vacate the premises. 18. Hence, I find no substantial question of law emerging for consideration for entertaining the 2[nd] appeal and it is devoid of any merit and hence is only to be dismissed. 19. The learned counsel for the appellant/defendant would contend that a reasonable time should be granted to the defendant to find out a suitable alternate accommodation and defendant sought a period of one year. The learned counsel for the respondent/plaintiff on the other hand though did not raise any objection to grant a short period of three months, objects to grant a period of one year. It has come out that the respondent is R.S.A.No.142/2022 **13** none other than the maternal uncle of the plaintiff. 20. Having regard to the facts and circumstances, I find it just and proper to grant a period of 8 months time starting from this date to the appellant/defendant to vacate from the plaint schedule property on condition that the appellant/defendant shall file an undertaking affidavit before the execution court within a period of ten days from today agreeing to vacate the premises within a period of 8 months starting from this date. If he fails to vacate the premises within the period stipulated, execution proceedings can be proceeded with against the appellant/defendant. In the facts and circumstances, there is no order as to costs. Sd/- SHG **M.R.ANITHA JUDGE**