Suresh and Raju v. Santakumary and Indian Oil Corporation

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 5TH DAY OF JANUARY 2012/15TH POUSHA 1933 RSA.No. 1264 of 2011 ( ) ======================== AS.138/2008 of II ADDL. DISTRICT COURT,KOLLAM OS.412/2004 of ADDL.MUNSIFF COURT, KOLLAM APPELLANT(S)/APPELLANTS/DEFENDNTS 1, 3 TO 6 & ADDL.DEFENDANTS 8 TO 10: ============ 1. M/S.SURESH AND RAJU, I.O.C. DEALERS, KILIKOLLOOR P.O., MOONNAMKUTTY, KOLLAM 4. 2. K.SURESH (WRONGLY SHOWN AS S.SURESH IN THE JUDGMENT OF THE LOWER APPELLATE COURT) S/O.KESAVAN, SHANMUGHAVILAS, KILIKOLLOOR P.O., KOLLAM 4. 3. RADHA RAJU, W/O.RAJU, IN DO. DO. 4. KEERTHANA RAJU, D/O.RAJU, IN DO. DO. 5. KARTHIK RAJU (WRONGLY SHOWN AS KARTHIKA RAJU IN THE JUDGMENT OF THE LOWE APPELLATE COURT) S/O.K.RAJU, IN DO. DO. 6. GIRIJA YESODHARAN, SHANMUGHAVILAS HOUSE, 74, MANAVA NAGAR, KILIKOLLOOR PO, KOLLAM 4. 7. SANJITH YESODHARAN, IN DO. DO. 8. SINDHU ZAKEER, SAKEER BUNGLOW, WAYANAD ROAD, EAST NADAKKAVU, KOZHIKODE. - BY ADV.SRI.P.B.KRISHNAN - SMT.GEETHA P.MENON - SRI.N.AJITH - SRI.P.B.SUBRAMANYAN RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANT NO.7: ============= 1. SANTHAKUMARY, W/O.SIVARAJAN, 84, MANAVA NAGAR, KILIKOLLOOR PO., KOLLAM-691004. 2. M/S.INDIAN OIL CORPORATION, REPRESENTED BY THE CHIEF DIVISIONAL RENTAL MANAGER, COCHIN 682036. ADV. SRI.D.KISHORE (COUNSEL FOR CAVEATOR) FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.1264 of 2011 -------------------------------------Dated this the 5[th] day of January, 2012.** ## **JUDGMENT** Defendants 1 and 3 to 6 and additional defendants 8 to 10 challenge judgment and decree of learned Additional District Judge-II, Kollam in A.S.No.138 of 2008 confirming judgment and decree of learned Additional Munsiff, Kollam in O.S.No.412 of 2004. 1[st] respondent/plaintiff filed that suit for a decree for mandatory injunction to direct appellants and others to surrender vacant possession of the suit property claiming that in the year, 1960, 1[st] respondent permitted the 1[st] appellant to occupy the suit property and put up infrastructures to run retail out let of the Indian Oil Corporation for fee of `750/per month. 1[st] respondent claimed that the license was revoked by notice and in spite of that, appellants and others did not vacate the premises. Hence the suit. Appellants contended that they are lessees of the suit property by virtue of the document of the year, 1960 executed by the 1[st] respondent. The rent was `250/- per month. Later Ext.B1, lease deed was executed on 16.05.1967. They have constructed permanent structures in the suit property. Appellants and others claimed protection of Section 106 of the Kerala Land Reforms Act (for short, “the KLR Act”) and claimed that they are not liable to be evicted. Appellants also prayed that their claim for protection under Sec.106 of then KLR Act be referred to the Land Tribunal. **RSA No.1264/2011** 2 2. Trial court by a separate order held that since the claim is for protection under Sec.106 of the KLR Act, reference of that question to the Land Tribunal is not required. That order is justified in view of the decision in ## **Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43)** . Trial court held that Ext.B1, lease deed dated 16.05.1967 is a forged document in that appellants and others did not produce the document of 1960 which according to the 1[st] respondent is a license. Trial court observed that Ext.B1, lease deed was created on 16.5.1967, ie. a few days before the cut of date (20.05.1967) mentioned in Sec.106 of the KLR Act. 1[st] respondent filed I.A.No.330 of 2007 to direct appellants produce the document of the year, 1960. In spite of an order, appellants neither produced the said document nor filed affidavit why it is not produced. Trial court also observed that if the license fee as claimed by the 1[st] respondent in 1960 was `750/- per month (or, it was rent of `250/- per month as claimed by the appellants), it was unlikely that the 1[st] respondent would execute Ext.B1, for no reason whatsoever on 16.05.1967 agreeing for rent of `125/- per month. Trial court granted a decree in favour of the 1[st] respondent. That decree was challenged in A.S.No.138 of 2008. Learned Additional District Judge concurred with the view taken by the learned Additional Munsiff as to the genuineness of Ext.B1, lease deed but made certain observations to the effect that necessary pleadings are not made by the appellants in their written statement for protection under Sec.60(b) of the Easements Act (for short, “the Act”) . Learned Additional District Judge confirmed judgment and decree of the **RSA No.1264/2011** 3 trial court. Appellants were directed to surrender vacant possession of the suit property except the infrastructure of petrol and diesel outlets to the 1[st] respondent within two months from the date of judgment. That judgment and decree are under challenge in this appeal urging the following by way of substantial questions of law: i. When the case of the plaintiff establishes that the license cannot be revoked in view of Sec.60(b) of the Indian Easements Act, 1882, is it legal and proper to grant her a decree for eviction? ii. Is the absence of a plea in defence on the entitlement to the protection of Sec.60(b) of the Indian Easements Act, 1882 significant when the plaint, suit notice and testimony of PW1 establishes that the license cannot be revoked? iii. Is the lower appellate court justified in proceeding on the footing that the lease deed relied on in defence is forged, when an application for comparison of signatures by an expert was unreasonably turned down? iv. Is not the entitlement to the benefit of Sec.106 of the Kerala Land Reforms Act, 1963 to be determined by a competent Land Tribunal and will not a decision of the civil court without reference to the Land Tribunal be illegal and void? v. Whether the judgment and decree of the lower appellate court is sustainable in law? **RSA No.1264/2011** 4 3. It is contended by learned counsel for appellants that though in this Second Appeal finding of the trial and first appellate courts that there was no lease in favour of the appellants by virtue of Ext.B1 is not under challenge, appellants are entitled to succeed on the plea raised by 1[st] respondent in the plaint in the light of observations made by the learned Additional District Judge in the judgment under challenge. According to the learned counsel, averments in the plaint would show that appellants are licensees of the suit property, that acting upon the license they have put up permanent structures in the said property and hence the license has become irrevocable under Sec.60(b) of the Act. Learned counsel has placed reliance on the decision in **Ram Sarup** ## **Gupta (dead) by Lrs. v. Bishun Narain Inter College and others** **((1987) 2 SCC 555)** the relevant portion of which is quoted by the learned Additional District Judge in the judgment under challenge. It is the contention of learned counsel that on the averments in the plaint, trial court ought to have found that there was no cause of action for the 1[st] respondent to seek eviction of appellants and the trial court ought to have rejected the plaint for want of cause of action invoking power under Rule 11(a) of Order VII of the Code of Civil Procedure (for short, “the Code”). It is pointed out that the power to reject the plaint can be exercised at any stage of the proceeding, even in the appeal and hence, the plaint itself is liable to be rejected. Learned counsel has invited my attention to the evidence of PW1 to contend that creation of the renewal lease **RSA No.1264/2011** 5 by Ext.B1 when put to PW1 was not countered by him. 4. Courts below found concurrently that Ext.B1 is a concocted document. That finding is not under challenge before me. Nor do I find reason to re-consider that finding in view of the circumstances first above stated. 5. What then remained is whether on the averments in the plaint it is open for the appellants to contend that they are entitled to the protection of Sec.60(b) of the Act. The said provision states that a license may by revoked by the grantor unless the licensee acting upon the license has executed work of a permanent character and incurred expenses in the execution. It has been held time and again that in the absence of a specific plea in that regard, a claim for protection under Sec.60(b) of the Act cannot be entertained. Concededly, appellants have not pleaded in their written statement either that they are licensees or that acting on the license they have put up permanent structures, the license has become irrevocable and that they are entitled to the protection of Sec.60(b) of the Act. On the otherhand, their consistent case is that even in the year, 1960 a lease deed was executed in their favour and there was a renewal of that lease in the year, 1967. It is also relevant to note that appellants did not produce the document of 1960 or file affidavit in spite of an order to that effect on I.A.No.330 of 2007 filed by the 1[st] respondent notwithstanding the case pleaded by them that the document of 1960 executed in their favour is a lease and Ext.B1 is a renewal lease. The courts below concurrently found against **RSA No.1264/2011** 6 genuineness of Ext.B1. Appellants miserably failed in their attempt to establish a lease. In such circumstances, without any plea appellants cannot, in equity, justice and good conscience be permitted to claim protection of Sec.60(b) of the Act for the first time. (See **Panchugopal Barua and others v. Umesh Chandra Goswami and others – AIR 1997 SC 1041** ). 6. Now the question is whether in the above stand of appellants, they can take shelter under the plea raised by the 1[st] respondent in the plaint. I have been given a copy of the plaint where, 1[st] respondent has proceeded on the basis that appellants and others were put in occupation of the suit property and building on the strength of a deed of license executed in the year, 1960. In paragraph 3, it is stated that property which is the subject matter of license is 20 cents, shed and office room over which license was granted. In paragraph 5, it is stated that after obtaining the license from the 1[st] respondent, 2[nd] appellant, deceased 2[nd] defendant and the late K.Raju put up infrastructures for running a petrol and diesel pump such as under ground tank, its pump and temporary roofing with the permission of the 1st respondent as per the requirements of 7[th] defendant. In paragraph 10, it is stated that the license granted in favour of 1[st] appellant as above was revoked as per law. The cause of action pleaded in paragraph 16 is that it arose on and from the year, 1960 on which year 1[st] respondent granted a license in favour of the 1[st] appellant to use and occupy the suit property and building and thereafter, as referred to in paragraph 16 of the plaint. **RSA No.1264/2011** 7 ## 7. Referring to the decision in **Ram Sarup Gupta (dead) by Lrs.** ## **v. Bishun Narain Inter College and others** learned Additional District Judge observed that appellants who failed to put forward a claim under Sec.60 (b) of the Act even in the appeal cannot be allowed to turn around and contend that their case has to be considered as per the said provision. In the decision relied on by learned Additional District Judge it is held that substance of respondents' pleadings clearly informed that their case was that they had made constructions on the land acting upon the license which substantially met the requirement of law and that the mere absence of 'acting upon the license' in the pleading was not fatal. I must remember that in that case respondents had pleaded (though not specifically stating that 'acting upon the license') that pursuant to the license they had put up works of permanent character and incurred expenses. Respondents in the case before the Supreme Court did not have a contention that it is a lease, failed in proving the lease and then turned around and contended that as the appellant said, it is a license and hence they are entitled to protection under Sec.60(b) of the Act. 8. Useful reference can be made to the decisions in **Shankar** ## **Gopinath Apte v. Gangabai Hariharrao Patwardhan (AIR 1976 SC 2506), Geetha Varma v. Amminikutty (1995 (1) KLT 525)** and **Narayana Pillai v. Parameswaran Pillai (2009 (3) KLT S.N.26 (at** **page 21)** . In the first of the above decisions, the Supreme Court held in **RSA No.1264/2011** 8 paragraph 14 that if the person concerned improved the land by executing work of permanent character on the belief that he is a tenant, such improvement is not in his character as 'licensee' but as a tenant. In **Geetha Varma v. Amminikutty** it is held that Sec.60(b) of the Act can have operation only if the 'licensee' has acted upon the license and erected structures of permanent character and that 'acting upon license' means the state of mind of the licensee at the time when he constructed the structures or building. In a case where the licensee has considered himself to be a lessee or mortgagee and has constructed building or erected other structures in the property, he would not be entitled to the protection under Sec.60(b) of the Act. In the last of the above decisions it is held that the meaning of the words 'acting upon license' means the state of mind of the licensee at the time when he constructed structures or building and in a case where the licensee has considered himself to be a lessee or mortgagee and has constructed the building or erected other structures in the property, he would not be entitled to get protection under Sec.60(b) of the Act. There, the stand of appellant through out was that he is a lessee. It was held that in such situation appellant is not entitled to the protection of Sec.60(b) of the Act. 9. In this case I stated that appellants never had a case that they are licensees of the suit property and building thereon which is the subject of the suit. In that situation, it is evident that the construction if any made by the appellants was not acting upon the license but, on the claim that they are **RSA No.1264/2011** 9 lessees of the property. 10. In that situation, merely based on the averments in the plaint, appellants cannot succeed. It is also not open to the appellants to cull out certain portions from the plaint and request this Court to grant relief in their favour. Averments in the plaint must be read as a whole. In the plaint it is pleaded that it was with the “permission” of the 1[st] respondent that appellants put up certain structures in the said property. I am not inclined to think that if in spite of existence of license appellants have obtained permission from the 1st respondent to put up structures, it is an act of 'acting upon the license' as provided in Sec.60(b) of the Act. In that view of the matter also, contentions raised by the appellants cannot stand and as the above position of law is well settled, no substantial question of law as urged is involved for a decision in this Second Appeal. The Second Appeal lacks merit. No substantial question of law is also involved. It is dismissed. I.A.No.2703 of 2011 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**