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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
P.M.Aravindan, S/o.P.P.R.Kurup – Appellant
Versus
K.P.Udayakumar S/o.Krishnapoyilil Balakrishnan - Respondent
RSA No.145 of 2017
Decided on : 14-06-2021
Civil Laws – Decree for mandatory injunction – Assignment deed – Vacate property – R.S.A. is directed against the judgment and decree in A.S. on the file of the first Additional District Court, Kozhikode, confirming the judgment and decree in O.S. on the file of the Principal Munsiff's Court-II, Kozhikode – Defendant, who was directed to vacate the plaint schedule property by way of a decree for mandatory injunction, was before the first appellate court. – Plaintiff before the trial court, who was the respondent before the first appellate court, is the respondent herein. – Parties are hereinafter referred to as the plaintiff and defendant according to their status in the trial court unless otherwise stated. – If it is proved that the defendant is not in possession of the property on the basis of the suit document (Ext.A2) was the courts below justified in granting a decree on the basis of said document– Assuming that Ext.A2 is a license agreement, in the absence of a specific recital in the said document that the same is executed after obtaining vacant possession of the property pursuant to previous arrangement, will the previous arrangement revive on the termination of the present arrangement –
Finding of the court: Trial court entered a finding that the defendant who is a party to the suit has failed to adduce evidence before the trial court that Exts.B1 and B2 were executed by Choyi. In view of the circumstances, the trial court relied on Vidhyadhar v. Mankikrao & another [AIR 1999 SC 1441] and held that the case set up by him is not true to facts. – On a perusal of the facts and circumstances involved, it is clear that the trial court has drawn adverse inference against the defendant in accordance with the evidence adduced in the case. – First appellate court agreed with the said finding. – There is nothing on record to indicate that he is entitled to the benefit of Act 2 of 1965 as a tenant in the plaint schedule building. – Defendant, in fact, failed to prove the oral lease between Choyi, the successor of the plaintiff and the defendant. – Under the circumstances, the only inference which could be drawn is that the defendant was allowed to occupy the premises by Choyi as a licensee. – In continuation of the same, immediately after execution of the sale deed in favour of the plaintiff, the defendant executed licence agreement in favour of the plaintiff. – It is also very difficult to believe that the defendant who was a business man in the plaint schedule shop room put his signature in Exts.A1 and A2 without knowing its contents. – Exts.A1 and A2 are pure and simple licence agreements – It is not necessary on the part of the plaintiff to allege and prove that after obtaining vacant possession of the property pursuant to previous arrangement, Ext.A2 license agreement was executed. – As a licensee, the defendant has no interest in the building and its possession cannot exclude the rightful owner of the property. Merely because other modes of eviction are available to the plaintiff, the remedy by way of mandatory injunction cannot be denied. – Owner of immovable property on termination of the license is entitled to maintain a suit for mandatory injunction against the licensee to vacate the property. In Rajappan v. Veeraraghava Iyer [1969 KLT 811], a learned Single Judge of this Court held that, when the owner of immovable property terminates a licence, he can sue for mandatory injunction directing the licensee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession. – There is no merit in this R.S.A –
Result: RSA dismissed
JUDGMENT :
This R.S.A. is directed against the judgment and decree in A.S.No.53 of 2016 dated 05.12.2016 on the file of the first Additional District Court, Kozhikode, (hereinafter referred to as 'the first appellate court') confirming the judgment and decree in O.S.No.314/2013 dated 23.12.2015 on the file of the Principal Munsiff's Court-II, Kozhikode (hereinafter referred to as 'the trial court'). The defendant, who was directed to vacate the plaint schedule property by way of a decree for mandatory injunction, was before the first appellate court. The plaintiff before the trial court, who was the respondent before the first appellate court, is the respondent herein. The parties are hereinafter referred to as the plaintiff and defendant according to their status in the trial court unless otherwise stated.
2. The plaintiff claims that the plaint schedule property originally belonged to one Choyi @ Damodaran (hereinafter referred to as 'Choyi') from whom he acquired the property as per assignment deed registered as document No.4017/2012 of Chevayur Sub Registry dated 10.12.2012. The defendant was a licensee under Choyi as per agreement dated 30.5.2012, for a monthly license fee of Rs.2,400/-. A sum of Rs.1,25,000/-was received as security deposit. The term of licence expired on 30.4.2013. It was further contended that the licence fee is in arrears from November, 2013. The defendant did not vacate the plaint schedule property after the expiry of the period. Hence, the plaintiff issued a notice calling upon the defendant to vacate the premises. The defendant did not give any reply to the notice. Hence the plaintiff filed the suit on 22.5.2013 for a mandatory injunction directing the defendant to vacate the plaint schedule premises.
3. The defendant filed the written statement contending that he was put in possession of the property pursuant to an agreement dated 30.5.2012. It was further contended that he was in possession and enjoyment of the property on the basis of an oral lease between him and Choyi on 01.03.2001 and that he is enjoying the property as a lessee on the basis of the said oral lease. The arrangement was later reduced into an agreement. It was contended that when Choyi required some money, the defendant had advanced a sum of Rs.3,00,000/-to him and an agreement was entered into between the defendant and Choyi on 07.05.2001 whereby he was permitted to retain the plaint schedule property as a tenant till he intends to vacate. The monthly rent was being periodically enhanced. On 30.5.2012, the rent was enhanced to Rs.2,400/-per month and the defendant happened to put his signature in a document brought by Choyi wherein he was made to believe that it was a lease agreement to enhance rent. The defendant executed the agreement believing the words of Choyi in view of the relationship between them. The plaintiff is none other than the nephew of Choyi who is aware of the arrangement between the defendant and Choyi. The arrangement between the defendant and Choyi was always as a tenant and the receipts issued to the defendant by Choyi were towards rent paid. The defendant is conducting stationery business in the plaint schedule property which is his only source of livelihood. There are no other suitable buildings available in the locality for rent. The document allegedly executed in favour of the plaintiff is a sham document which has not come into effect. At any rate the plaintiff, who is an assignee from Choyi, is bound by the terms and conditions of the entrustment entered into between Choyi and the defendant. The rent happened to be in arrears because Choyi did not come to collect the rent. He further contended that the relationship between the parties is as landlord and tenant and therefore the suit for mandatory injunction is not maintainable.
4. During the trial, the plaintiff was examined as PW1. Exts.A1 to A6 were marked on his side. No oral evidence was adduced by the defendant. However, Exts.B1 and B2 were marked o
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