Sankaranarayanan and Others v. R. Sumithra Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 RSA.No. 615 of 2006() --------------------AS.170/2003 of SUB COURT, OTTAPPALAM OS.37/2002 of MUNSIFF COURT, OTTAPPALAM .................... ## APPELLANTS/APPELLANTS/DEFENDANTS: ----------------------------------------------------- 1. SANKARANARAYANAN, S/O. KANNAN @ CHANDRAN 2. SOWMINI, W/O. SANKARANARAYANAN 3. ARUN, S/O. SANKARANARAYANAN. 4. AISWARYA (MINOR), D/O.SANKARANARAYANAN. (THE MINOR 4TH APPELLANT IS REPRESENTED BY HER GUARDIAN FATHER THE 1ST APPELLANT HEREIN). ALL ARE RESIDING AT ARUVAMOOLA HOUSE, LAKKIDI PEROOR VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------ R. SUMITHRA AMMA, WIDOW OF KANNAN @ CHANDRAN, RESIDING AT ARUVAMOOLA HOUSE, LAKKIDI PEROOR VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT. ADV. SRI.RAJESH SIVARAMANKUTTY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A.No.615 of 2006 -------------------------------------Dated this the 29[th] day of March, 2010.** ## **JUDGMENT** Appellant No.1 is the son of respondent. Appellant Nos.2 to 4 are wife and children of appellant No.1. Respondent claimed that the suit property belonged to her as per Ext.A1, assignment deed dated 7.5.1952 and later she purchased jenm right as per Ext.A2, purchase certificate dated 19.12.1975. While so, she permitted the appellants, her son, wife and children to stay in the building in the suit property. Later as per Ext.A3, notice dated 26.12.2001 she revoked that permission and wanted appellants to vacate the building in the suit property. They sent Ext.A4, reply refusing the demand and setting up a claim of co-ownership over the suit property and that the building was constructed by appellant No.1 using his funds. Hence the suit for mandatory injunction. Appellants contended that suit property was purchased by the father of appellant No.1 (husband of respondent) in the name of respondent at a time when he had certain liabilities, sale consideration flowed from the father and that respondent is only a transferee of the suit property. On the death of the father, appellant No.1 along with others became co-owner of the suit property. He constructed the building in the suit property spending Rs.2,50,000/-. He also claimed to have improved the property. It is incorrect to say that himself and family are residing in the building with the permission of respondent. Instead, he is residing in the building as of right. Trial court found the issues in favour of the **RSA No.615/2006** 2 respondent and granted mandatory injunction. That was confirmed by the first appellate court and hence the Second Appeal. Following substantial questions of law are framed for a decision: i. Whether the courts below were correct in law in decreeing the suit for mandatory injunction to vacate the property in the absence of proof of existence of a licence to occupy and its revocation? ii. Is not the plaintiff obliged to file a proper suit for recovery of possession on title wherein the defendants are also entitled to claim the value of improvements, if any, in the property? iii. Does the prohibition against entering into benami transaction apply to a case of purchase in the name of the wife in view of Section 3(2) of the Benami Transaction (Prohibition) Act? iv. Whether the courts below were right in holding that the presumption under Section 90 of the Evidence Act applies not only to execution but also to the contents of ancient documents? **RSA No.615/2006** 3 v. Is the presumption under Section 72K of the Kerala Land Reforms Act available to the certificate of purchase obtained behind the back of the interested parties as in this case? Learned counsel for appellants contended that there is no acceptable evidence to show that the suit property was purchased by the respondent utilising her funds and that there is no evidence to show that during the time of Ext.A1, respondent had any income and that the purchase was effected with her funds. Further contention is that at any rate, there is sufficient evidence to show that the building was constructed by appellant No.1 with his funds, since relief in the suit prayed for is in relation to building courts below went wrong in ordering mandatory injunction. Yet another contention is that a suit for mandatory injunction would not lie and that the appropriate remedy of the respondent was to sue for recovery of possession so that appellants could raise a claim for value of improvements effected by them. Counsel for respondent would support the findings entered by the courts below. 2. So far as the title of the suit property as per Ext.A1 is concerned, it is not disputed that the document is in the name of respondent and there is recital to the effect that consideration flowed from the respondent. Ext.A1 is dated 7.5.1952. Respondent when examined as PW1 stated that she raised the **RSA No.615/2006** 4 funds for purchase of the property by selling her ornaments. It is true that appellant No.1 when examined as DW1 denied that his mother had any ornaments at the time of Ext.A1. But considering his age as on the date of his examination it is not likely that he had any direct information whether his mother had ornaments at the time of Ext.A1 dated 7.5.1952. He also would say that it is the information he got from his father (who was employed in the railway retired in the year 1978 and died in the same year) that his father spent money for purchase of the suit property. Appellants have a contention that the purchase was effected by the father in the name of respondent and hence the latter is only a transferee. I stated that the recital in the document shows that the necessary fund for purchase of Ext.A1 flowed from the respondent. No doubt, recitals in the document do not attract the presumption under Section 90 of the Evidence Act. If the truth of the recitals are disputed, it is to be proved. But in so far as there is no contra evidence to show that the recital in Ext.A1 is false, that recital must stand. Courts below are therefore justified in holding that suit property was acquired by the respondent as per Ext.A1. As such, the question whether the purchase is benami or, respondent is only a trustee for appellant No.1 and others does not arise for decision. In the light of the above, there could also be no challenge to the issue of purchase certificate in favour of the respondent. **RSA No.615/2006** 5 3. Now the dispute is concerning title to the building wherefrom the appellants are asked to vacate. Though Ext.A1 does not refer to any building in existence at the time of that assignment it is admitted by appellant No.1 when examined as DW1 that there was an old tiled house in the suit property constructed after Ext.A1 and himself was aged 1 ½ years at that time. Obviously he could not have had any role in the construction of that building. Though it is the case of appellants that the old house also was constructed by the father that also was not supported by any acceptable evidence except the interested version of appellant No.1as DW1 which itself is not on the basis of any direct knowledge. According to the respondent, while herself and children including appellant No.1 were residing in the old house she started construction of the RCC building in the suit property (which is the subject matter of the suit) she raised the funds by sale of timber in the suit property and by sale of her ornaments. It is not disputed that construction of the said building was completed by about 1988. It is also not disputed that before that, appellant No.1 had taken up employment abroad. Case of appellants is that appellant No.1 in his capacity as co-owner of the suit property constructed the building spending about Rs.2,50,000/-. In proof of that, appellants produced Exts.B6 series to B13. Exts.B6 to B9 series are various memos for appellant No.1 sending money either to the respondent or to his brothers. Ext.B6 series are in the name of the brother while Ext.B7 series are in the name of the sister and **RSA No.615/2006** 6 brother. Ext.B8, memo dated 27.07.1981 is in the name of respondent. Ext.B9 series and Ext.B10 also in favour of two of the brothers of appellant No.1. Ext.B11 is the counter foil of the NRE account of appellant No.1. Ext.B12 is the letter dated 19.04.1987 sent by appellant No.1 to one of his brothers and Ext.B13 is letter dated 21.04.1987 sent by another brother to appellant No.1. When examined as DW1 he stated that he sent money to the brothers and mother as stated above for the purpose of construction of the house. But it is seen that of the memos produced, Exts.B6 (a) and (b) are for the year 1980 while Ext.B6(c), B7 series and Ext.8 are for the 1981. Ext.B9 series are for the year 1981 and 1982 while Ext.B10 is for the 1983. Ext.B11 is for the year 1987. Respondent when examined as PW1 denied that the money sent by appellant No.1 was utilised for construction of the house. Though the trial court observed from Ext.B6 series to Ext.B13 that some amount sent by appellant No. 1 also may have been utilised for construction of the house, first appellate court held that there is no reliable evidence to state so. It is true that there is reference in Exts.B8 to B13 about construction of building. Even if it is assumed that as observed by the trial court contribution for construction of the house came from appellant No.1 also, that does not necessarily mean that he constructed the building as if the building should belong to him. Though the principle that whatever is affixed to the soil belongs to the soil has no application in India and land and the building can be owned by different persons it is for the person **RSA No.615/2006** 7 claiming to be the owner of building to prove the same. In the absence of reliable evidence in that regard it must be taken that the building belongs to the owner of the land being something embedded in the land and forming part of it. First appellate court has found from the evidence that documents produced by appellants are not sufficient to hold that the building was constructed by appellant No.1. That is a finding entered on the evidence on record and even if it is assumed that the finding is erroneous that does not give rise to a substantial question of law so far as the finding is not perverse. 4. It is then argued by learned counsel that at any rate, the suit ought to have been for recovery of possession and not for mandatory injunction. According to the learned counsel though it is the case of respondent that permission was granted to the appellants to stay in the building in question in the year 1999 evidence on record show that even before that, appellants have been staying in the building in question. Learned counsel invites my attention to Exts.B4, B5 and B18 to B23. Even as per evidence, construction of the building was completed only by 1988. PW1 stated that during that time, appellants were also staying in the tiled house with her and thereafter appellant No.1 purchased land elsewhere and set up residence there. During 1999-2000 in connection with the education of his children appellant No.1 wanted to stay in the building in question and that was permitted by the respondent. Even if it is assumed that **RSA No.615/2006** 8 even prior to 1999 appellants were staying in the building in question so far as there is no reason to interfere with the concurrent finding of the courts below that the suit property and building belong to the respondent, residence of appellants in the said building can only be taken as permissive. That permission has been revoked by respondent and appellants are called upon to vacate the building. ## This Court in **Ayissa Umma v. Ami (1990 (1) KLT 98)** and the Supreme Court in **Joseph Severence v. Benny Mathew (2005 (4) KLT 290)** have has held that when a license is terminated it is open to the grantor to sue for mandatory injunction within a reasonable time to direct the licensee to vacate the premises. Going by Section 63 of the Easements Act (for short, “the Act”) on expiry of the period of licence or termination as the case may be, licensee is entitled only to a reasonable time to vacate the premises. A suit for recovery of possession is required only after the termination of licensee or expiry of the period as the case may be the licensee has asserted possession as against grantor and continued to be in such possession. That situation does not arise in this case and hence the prayer for mandatory injunction is proper and sufficient. 5. Though not raised as a substantial question, it is contended that appellants are entitled to protection of Section 60(b) of the Act in so far as the licensee is coupled with a grant and appellants have put up a permanent **RSA No.615/2006** 9 structure acting upon the license. This contention cannot survive as I stated there is no reason to interfere with the finding of the first appellate court that the building did not belong to appellant No.1 as claimed by him. Moreover, there is no pleading in the written statement regarding irrevocability of the licence under Section 60(b) of the Act. Without specific plea of irrevocability though not the Section is not quoted, no contention in that regard can be raised. (See **Saraswathi v. M/s.Bharat Textiles (1992 (1) KLJ 344)** Substantial questions of law framed are answered in the above lines. 6. Learned counsel for appellants requests that appellants may be granted twelve (12) months' time to vacate the building in question. Request is opposed by counsel for respondent. Learned counsel for respondent would submit that appellants could be granted a few months' time to vacate the building. Having regard to the circumstances stated by learned counsel for appellants I am inclined to grant the appellants six (6) months' time to vacate the building. Resultantly appeal is dismissed. Appellants are granted six (6) months' time from today to vacate the building subject to the following conditions: (i). Appellants shall not cause any damage to the building. **RSA No.615/2006** 10 (ii). Appellants shall vacate the building on the expiry of the said period of six (6) months' without putting forward any claim. (iii). Appellant No.1 on behalf of himself and other appellants shall file affidavit in the trial court within one month from today undertaking to comply with condition Nos. (i) and (ii) above. (iv). It is made clear that in case of non-compliance of any of the above conditions it will be open to the respondent to execute the decree notwithstanding the time granted hereby. Parties shall suffer their respective cost. ## I.A.Nos.1641 of 2006 and 773 of 2007 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**