Treessa and Josephine v. K.R. Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938** ## **RSA.No. 865 of 2005 (C)** **------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 24-06-2005 IN AS 41/2004 of ADDITIONAL SUB COURT, KOCHI.** **AGAINST THE JUDGMENT AND DECREE DATED 21-02-2004 IN OS 482/2003 of ADDITIONAL MUNSIFF'S COURT, KOCHI.** **APPELLANTS IN RSA - APPELLANTS IN AS - DEFENDANTS IN SUIT: ---------------------------------------------------------** **1. TREESSA, W/O.LATE ROCKEY, KURISINGAL HOUSE,XV/617, SOUTH MOOLAMKUZHI, RAMESWARAM VILLAGE, KOCHI TALUK.** **2. JOSEPHINE, D/O. ROCKEY, VELIYAPARAMBIL HOUSE, NAZERATH, KOCHI TALUK, KOCHI-2.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN** **RESPONDENT IN RSA - RESPONDENT IN AS - PLAINTIFF IN SUIT:** **---------------------------------------------------------** **K.R.JOSEPH, S/O.ROCKEY, RESIDING AT XV/617,KURISINGAL HOUSE, RAMESWARAM VILLAGE, SOUTH MOOLAMKUZHI, KOCHI TALUK.** **BY ADV. SRI.SHIVSHANKAR RAO** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K. HARILAL, J. = = = = = = = = = = = = = = = = = R.S.A.No. 865 of 2005** **-- - - - - - -- - - - - - - - - -** _Dated this the 8[th] day of February, 2017_ **J U D G M E N T** Appellants are defendant Nos.1 and 2 in O.S. No.482 of 2003 on the files of the Additional Munsiff's Court, Kochi. The defendants are mother and sister respectively of the plaintiff. They were sued for a mandatory injunction, directing them to vacate the plaint schedule property, measuring 2.750 cents with a house situated thereon, as if they are in permissive possession of the plaintiff. 2. According to the plaintiff, the plaint schedule property and building R.S.A. No. 865 of 2005 -: 2 :- belongs to him, by virtue of Ext.A1 Gift Deed dated 17.11.1999, executed by the mother, the 1[st] defendant herein. Pursuant to Ext.A1, the plaint schedule property was delivered to the plaintiff and the Gift Deed was accepted by the plaintiff, according to him. Thus, the gift has come into force. After the execution of the Gift Deed, the mother was permitted to reside in the house, though, she had lost title over the property by virtue of the life estate reserved in her favour. While so, the mother filed O.S. No.162 of 2002, seeking for a mandatory injunction and permanent prohibitory injunction. It was contended that the Gift Deed was executed by undue influence, fraud and misrepresentation for the purpose of availing a loan from the R.S.A. No. 865 of 2005 -: 3 :- bank, on an assurance that after the repayment of loan, the property will be retransferred to her. But the plaintiff herein has refused to re-transfer the plaint schedule property as assured by him. On the above premises, the suit was filed for a mandatory injunction for directing the plaintiff to re-transfer the plaint schedule property to her name and for a permanent prohibitory injunction, restraining the plaintiff herein from evicting the mother by force. The Suit was contested; but the prayer for mandatory injunction was abandoned, by filing a memo to that effect and the permanent prohibitory injunction was passed against the plaintiff, restraining him from forcibly evicting his mother, otherwise R.S.A. No. 865 of 2005 -: 4 :- than in due course of law. Hence, the plaintiff filed the Suit for mandatory injunction to direct the 1[st] defendant to vacate the plaint schedule house. 3. The 1[st] defendant filed a written statement, contending that the ownership and possession of the plaint schedule property is with the 1[st] defendant and the delivery of possession was not effected and thereby the Gift was no accepted. In short, the Gift Deed had no legal sanctity, since there was no delivery and acceptance. According to the 1[st] defendant, she has not executed the Gift Deed voluntarily and she was constrained to execute the Gift Deed on misrepresentation made by the plaintiff. The plaintiff made the 1[st] defendant to believe that the execution of the Gift Deed R.S.A. No. 865 of 2005 -: 5 :- is for producing before the Bank, so as to avail loan to purchase an autoriksha and he promised that the liability will be discharged within two years and the property will be re-transferred to the 1[st] defendant. Believing the same, the Gift Deed was executed; but no exclusive possession was given. It is also contended that the Gift Deed was not read over to her and the stamp paper was purchased by the plaintiff himself. However, the 1[st] defendant is residing the house being the owner and de facto possession and enjoyment of the property and her possession is not that of a licensee, as contended by the plaintiff. Subsequently, the 1[st] defendant has cancelled the said Gift Deed and in that circumstances, the mandatory relief in R.S.A. No. 865 of 2005 -: 6 :- O.S. No.162 of 2002 became unnecessary and the same was withdrawn. 4. It is also contended that the 2[nd] defendant has every right to be present in the plaint schedule property along with the mother. With the aforesaid averments, the defendants prayed for dismissal of the Suit. 5. On the aforesaid rival pleadings, both parties adduced evidence consists of the oral testimony of PW1, DWs1 and 2, Exts.A1 to A14 and B1 to B16. After evaluating the aforesaid evidence, on record, the trial court decreed the Suit, as prayed for. In Appeal Suit No.41 of 2004, the lower appellate court also affirmed the findings of the trial court and dismissed the Suit. Thus, the R.S.A. No. 865 of 2005 -: 7 :- concurrent findings, whereby the courts below rejected the plea of the defendants that the Gift was not accepted, is challenged in this Appeal, on the basis of the questions of law shown in the Memorandum of Appeal. 6. Heard the learned counsel for the appellants. 7. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the Suit is hit by Section 34 of the Specific Relief Act,1963. According to the learned counsel appearing for the appellant, where the plaint schedule property is in settled possession of defendants for the last so many years, a simple Suit for mandatory injunction is not maintainable, unless the R.S.A. No. 865 of 2005 -: 8 :- recovery of possession is sought for. To substantiate the aforesaid contention, the learned counsel for the appellant cited _**Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. & Ors.**_ [2008 SAR 878], _**Rame Gowda v. M. Varadappa Naidu & Anothe**_ [2004(1) SCC 769] and _**Aspiwall & Co. Ltd. v. Soudamini Amma**_ [1974 KLT 681]. 8. In view of the rival contentions, the questions of law to be considered in this Regular Second Appeal will stand reframed as follows: “(1). Has not, in any event, the permissive occupation of the 1[st] appellant/1[st] defendant matured into possession, adverse to the interest of the plaintiff, by efflux of time, and is not the remedy of the plaintiff, if at all, to sue for R.S.A. No. 865 of 2005 -: 9 :- possession based on title? (2) Will a suit for mandatory injunction lie on facts and circumstances of the case? 9. According to the plaintiff, the plaint schedule property and the building belong to him, by virtue of Ext.A1 gift deed dated 17-11-1999, executed by the mother, the 1[st] defendant herein. Pursuant to Ext.A1, the plaint schedule property was delivered to the plaintiff and the gift deed was accepted by the plaintiff. Thereafter, he has mutated the property in his favour and paying tax for the plaint schedule property. 10. On the other hand, it is the case of the 1[st] defendant that the plaint schedule property originally belonged to R.S.A. No. 865 of 2005 -: 10 :- the 1[st] defendant, the mother of the plaintiff and she executed Ext.A1 gift deed in favour of the plaintiff on an assurance that he will re-convey the plaint schedule property, after availing a loan from the bank by mortgaging the plaint schedule property for the time being, for purchasing an autorikshaw. Thus, Ext.A1 gift deed was executed under undue influence, coercion and misrepresentation. Further, the gift was not accepted by the plaintiff, as she was in continuous possession and enjoyment of the plaint schedule property, without interruption, as it was earlier, before the execution of Ext.A1 gift deed. In short, she never parted with the possession and thereby the gift deed has not come into force. That apart, she had executed Ext.B6 R.S.A. No. 865 of 2005 -: 11 :- cancellation deed cancelling Ext.A1 gift deed. 11. Coming to evidence, it is seen that the 1[st] defendant has produced Exts.B1 - original of ration card for the period 2002-2006, Ext.B2 - true copy of the relevant page of the ration card, Ext.B3 - basic tax receipt dated 16-9-1999 issued by the Village Officer, Ext.B5 - original of cancellation deed No.862/2002, Ext.B6 - a certified copy of the decree in O.S.162/2002 of the Munsiff's Court, Kochi, Ext.B7 - property tax receipt dated 22-102002 issued by the Corporation of Cochin, Ext.B8 - receipt dated 14-3-2002 issued by the Corporation of Cochin, Ext.B9 - property tax receipt dated 5-3-2002 issued by the Corporation of Cochin, Ext.B10 - R.S.A. No. 865 of 2005 -: 12 :- receipt dated 15-3-2002 issued by the Corporation of Cochin, Ext.B11 - copy of the complaint filed by the 1[st] defendant before the Secretary, Corporation of Cochin, Ext.B14 - estimate dated 8-22002 issued by a furniture sales shop, Ext.B16 - domestic gas consumer card etc. 12. On an analysis of the aforesaid documents, it could be seen that Exts.B1, B2 and B16 would show that the 1[st] defendant has been residing uninterruptedly in the petition schedule building, despite the execution of Ext.A1 gift deed. Exts.B7, B8, B9 and B10 show that 1[st] defendant has been paying the property tax for the building even after the execution of Ext.A1 gift deed and Ext.B11 shows that she had preferred a complaint against the R.S.A. No. 865 of 2005 -: 13 :- assignment of the building number in favour of the plaintiff, before the Corporation, after the execution of Ext.A1. Further, she has obtained Ext.B6 decree granting a prohibitory injunction restraining the plaintiff from illegally dispossessing the 1[st] defendant from the plaint schedule building, notwithstanding the execution of Ext.A1 gift deed. 13. What is discernible from a combined reading of the evidence, on record, is that the 1[st] defendant has been in uninterrupted and peaceful possession of the plaint schedule building, even after the execution of Ext.A1 gift deed, as it was before Ext.A1 and she never parted with possession of the plaint schedule building. It gives rise to a reasonable inference that she was R.S.A. No. 865 of 2005 -: 14 :- in settled possession of the plaint schedule building, notwithstanding the execution of Ext.A1 gift deed. 14. I have gone through Exts.A1 to A14 documents produced by the plaintiff. Exts.A2, A3 and A4 are the basic tax receipts and property tax receipts issued by the Village Officer and the Corporation of Cochin. It shows that the plaintiff also had paid tax for the property and building. It shows that the plaintiff has mutated the property, pursuant to Ext.A1; but that did not affect or disturb the 'settled possession' of the 1[st] defendant, who also had paid tax for the property and building after Ext.A1 gift deed. In other words, the mutation of the property in favour of the plaintiff did not militate R.S.A. No. 865 of 2005 -: 15 :- against the undisturbed and 'settled possession' of the 1[st] defendant. More over, the plaintiff himself admitted in Ext.B6 suit that the 1[st] defendant has been in possession of the plaint schedule building and he has no intention to dispossess the 1[st] defendant from the plaint schedule building. It is pertinent to note that in the earlier suit and in the present suit the plaintiff himself admitted that he is residing in another building and he has no physical possession over the plaint schedule building and no document has been produced to show that he was in physical possession of the plaint schedule building for any period ever since Ext.A1. In short, Exts.A1 to A14 have not disturbed or affected the 'settled possession' of the 1[st] R.S.A. No. 865 of 2005 -: 16 :- defendant. 15. In the above context, the decisions cited by the learned counsel for the appellants assumes relevancy and significance. 16. In _**Rame Gowda v. M. Varadappa Naidu**_ [2004 (1) SCC 769], the Supreme Court while considering the parameters to determine the 'settled possession' relied on the test laid down by the Supreme Court in _**Puran Singh v. State of Punjab**_ [(1975) 4 SCC 518] which reads as follows: “(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at R.S.A. No. 865 of 2005 -: 17 :- concealment by the trespasser and which contains an element of _animus possidendi._ The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the R.S.A. No. 865 of 2005 -: 18 :- trespasser and take forcible possession.” 17. On an analysis of the aforesaid evidence, on record, this Court finds that the 1[st] defendant has succeeded in satisfying the parameters referred above. It follows that the 1[st] defendant was in 'settled possession' of the plaint schedule building, notwithstanding the execution of Ext.A1 gift deed, at the time of filing the suit. 18. In _**Anathula Sudhakar v. P. Buchi Reddy (Dead) By Lrs. & Ors.**_ [2008 SAR (Civil) 878], the Supreme Court considered the question whether the injunction simpliciter alone is sufficient to recover a property from the 'settled possession' of the defendant and held as follows: **==> picture [240 x 15] intentionally omitted <==** R.S.A. No. 865 of 2005 -: 19 :- injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where _de jure_ possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or R.S.A. No. 865 of 2005 -: 20 :- implied as noticed in _**Annaimuthu Thevar**_ (supra). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.” 19. Further, in _**Aspinwall & Co. Ltd.,**_ - _**v. Soudamini Amma**_ [1974 KLT 681], this Court held as follows: “5. The licence is terminated. R.S.A. No. 865 of 2005 -: 21 :- But the licensee does not leave the premises. The question that may arise in the suit is whether a suit for a mandatory injunction or a suit for possession is the proper remedy. A mere licence only makes an act lawful which without it would be unlawful. A licensee has only a right of occupation with the permission of his licenser and his possession is not juridical possession. The licensee will be the actual occupant but the licenser will be the person having the control or possession of the property through his licensee. Then on the termination of the licence can the licensee be treated as a trespasser? In the possession of a trespasser there cannot but be an element of animus possidendi which will not be there in the possession which a licensee is having. Even after the R.S.A. No. 865 of 2005 -: 22 :- termination of the licence the licensee may have to continue to be in occupation of the premises for some time, because in many cases the licensee may require some reasonable time to remove materials belonging to him and quit the place. But during such time the licenser will be deemed to be in possession through his licensee, because the licensee cannot have any independent or separate interest in the premises. In that case a licensee cannot possibly be treated as a trespasser'. But there will be cases where even after the expiry of the licence the licenser sleeps over the matter and does not take prompt action to neck the licensee out of the premises. No doubt a licensee can continue in occupation of the premises for a reasonable time after the R.S.A. No. 865 of 2005 -: 23 :- termination of the licence. But if the licenser is not vigilant and the licensee continues in occupation of the premises beyond this reasonable time, what will he be? Will he be still a licensee or will he become a trespasser? If he continues to cling on to the premises why should he still be a licensee? No doubt it will be difficult to make a distinction in actual practice as to when a licensee becomes a trespasser and up to what time he will continue to be a licensee. There can be a more definite test. If on the expiry of the licence an assertion of a hostile title is made by the licensee and the licenser sleeps over the matter then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser. Under such R.S.A. No. 865 of 2005 -: 24 :- circumstances the licenser will have to sue for recovery of possession and a suit for a mandatory injunction under S.39 of the Specific Relief Act, 1963 will not be the remedy”. 20. When applying the principle laid down in the above decisions, this Court finds that a simple suit for mandatory injunction is not sufficient to dispossess the appellant from the petition schedule building, particularly when she had obtained Ext.A6 decree granting prohibitory injunction restraining the plaintiff from dispossessing the 1[st] defendant from the plaint schedule building. That apart, in Ext.B6 suit also she has raised a contention that Ext.A1 gift deed is vitiated by misrepresentation, coercion etc. It stands, undoubtedly, proved that R.S.A. No. 865 of 2005 -: 25 :- she is in 'settled possession' of the plaint schedule building. The plaintiff ought to have filed a suit for declaration of title and recovery of possession and a simple suit for mandatory injunction alone is not sufficient and the present suit is not maintainable against the 1[st] defendant 21. In view of the discussions made above, this Court finds that the permissive occupation of the 1[st] defendant matured into a 'settled possession' adverse to the interest of the plaintiff, by efflux of time and the remedy of the plaintiff is to sue for declaration of title and recovery of possession. A simple suit for mandatory injunction will not lie on the facts and circumstances of the case. The questions of law are answered accordingly. R.S.A. No. 865 of 2005 -: 26 :- 22. Coming to the relief claimed against the 2[nd] defendant, this Court finds that the 2[nd] defendant has neither right nor possession over the plaint schedule building. None of the reasons stated above are applicable to the 2[nd] defendant. In short, the simple suit for mandatory injunction would be maintainable against the 2[nd] defendant. On an analysis of the evidence, on record, this Court finds that the courts below are justified in passing mandatory injunction against the 2[nd] defendant. It is made clear that this judgment will not stand in the way of instituting a proper suit with proper reliefs, in view of the above findings. Hence all the reliefs granted against the 1[st] defendant/1[st] appellant in the R.S.A. No. 865 of 2005 -: 27 :- impugned judgments and decrees passed by the courts below are set aside and the reliefs granted against the 2[nd] defendant/2[nd] appellant are confirmed. Thus, this appeal is allowed in part. The decrees passed by the trial court and the lower appellate court will stand modified accordingly. All pending Interlocutory Applications will stand closed Sd/- ## _**(K. HARILAL, JUDGE)**_ ## _**DST**_ //true copy// P.S. to Judge