IMPORTANT POINT
The main legal point established in the judgment is that licensees are bound to vacate the property upon termination of the license, and the absence of a prayer for partition is not fatal to the plaintiff's case.

JUDGMENT :

C. PRATHEEP KUMAR, J.

1. This Second Appeal has been preferred under Section 100 r/w Order XLII Rule 1 & 2 of CPC by the appellants in A.S. 221/2005 on the file of the District Court, Palakkad, who are the defendants in O.S. 500/2003 on the file of the Munsiff's Court, Palakkad, against the judgment dated 26.6.2008 dismissing the appeal. For the purpose of convenience the parties are hereafter referred as per their rank before the trial court.

2. The brief facts necessary for the disposal of this appeal are the following:

The plaint schedule property consisting of ½ share over 98 cents of landed property and the residential building scheduled in the plaint originally belonged to late Anandarama Gowder. He had three sons, Devaraja Gowder, Subbayya Gowder and Sivalingappa Gowder, who is the 1st defendant in the suit. The 2nd defendant is the son of the 1st defendant. In the family partition, the above 98 cents and the building therein was jointly allotted to Devaraja Gowder and Subbayya Gowder. One half undivided right of Devaraja Gowder from the above 98 cents and building was purchased by the plaintiffs 1 and 2 as per Ext.A1 sale deed No. 3406/2001, which is the plaint schedule property. In one portion of the building the defendants have been residing with the permission of Devaraja Gowder. After purchasing the share of Devaraja Gowder as per Ext.A1 sale deed, the plaintiffs filed the suit for mandatory injunction for vacating the defendants from the schedule property and the building therein. The defendants would admit that Devaraja Gowder and Subbayya Gowder are the coowners of the 98 cents of property scheduled in the plaint. However, according to them, after the family partition, the 1st defendant exchanged his house situated at Kunnathurmedu to Devaraja Gowder with the share of Devaraja Gowder in the above 98 cents and started residence in the building therein. Therefore, the defendants would contend that they are residing in the building in the schedule property not as a licencee. They would further contend that they are not aware of the sale deed executed by Devaraja Gowder in favour of the plaintiffs and also that the right of Devaraja Gowder was acquired by the defendants by adverse possession and limitation.

3. The trial Court rejected the contentions of the defendants and decreed the suit by directing them to surrender vacant possession of the schedule property to the plaintiffs. The 1st Appellate Court also confirmed the judgment and decree of the trial court. Dissatisfied with the above concurrent findings of the trial court and the 1st appellate court, the defendants preferred this second appeal. During the pendency of the Second Appeal, both the defendants died and the LRs were impleaded as additional appellants 3 to 7.

4. At the time of admission, the following substantial question of law was formulated by this Court:

“Whether the courts below were justified in decreeing the suit by granting decree of mandatory injunction directing the appellants/defendants to vacate the scheduled portion of the building occupied by them along with the first appellant's brother Subbayya Gowder consequent on acquisition of half right over the building and property from a co-owner, without a decree for partition and separate possession of the half right purchased by them on the strength of Ext.A2 power of attorney executed by one of the co-owners, especially when plaintiffs are not related to the appellants/defendants, in view of Section 44 of the T.P. Act.”

5. Heard both sides in detail on the above substantial question of law.

6. At the time of arguments, the main contention raised by the learned counsel for the defendants was to the effect that since the defendants are residing in the building in the plaint schedule property even at the time of family partition, the remedy of the plaintiffs is to file a suit for recovery possession and not one for mandatory injunction. Another contention raised was that, since the residentia