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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J.
KARUNAGAPPALLY COIR VYAVASAYA CO-OPERATIVE SOCIETY LIMITED – Appellant
SANKARAN NAMBOOTHIRI RAMACHANDRAN NAMBOODIRI – Respondent
S.A. No. 461 of 2001
Decided On : 18-12-2024
(A) Kerala Land Reforms Act - Section 106 - Dispute over nature of property arrangement - The First Appellate Court held that Ext.A1 is a lease, entitling the defendants to fixity of tenure, which was contested by the plaintiffs as a license. The Trial Court found Ext.A1 to be a license, while the appeal confirmed it as a lease, impacting the right to recover possession. (Paras 11, 12, 16, 24)
(B) Mandatory injunction vs. recovery of possession - The court determined that a suit for mandatory injunction cannot be used to evict a lessee, who has legal possession, and must be pursued through a suit for recovery of possession. (Paras 17, 24)
Facts of the case:
The plaintiffs sought a mandatory injunction for possession of property, alleging the defendants were licensees under Ext.A1, which was contested as a lease. The Trial Court dismissed the suit, while the First Appellate Court allowed the appeal, leading to this second appeal.
Findings of Court:
The arrangement was determined to be a lease, not a license, and the plaintiffs' suit for mandatory injunction was unsustainable.
Issues: The main issues were the nature of Ext.A1 (lease vs. license), entitlement to fixity of tenure under Section 106, and the appropriateness of the suit for mandatory injunction.
Ratio Decidendi: The court ruled that the arrangement was a lease, thus requiring a suit for recovery of possession rather than a mandatory injunction.
Result: Regular Second Appeal allowed, dismissing the suit.
JUDGMENT :
M.A. ABDUL HAKHIM, J.
1. The appellant is the 1st defendant in O.S. No. 377/1985 of the Munsiffs Court, Karunagappally. The suit was for a mandatory injunction to handover the plaint schedule property after demolishing the building therein after finding that the 1st defendant has only licence over the plaint schedule property for recovery of arrears of rent and notice charges of Rs.135/- and future ground rent at the rate of Rs.400/- per annum. The plaint schedule property is 6 cents of land in Sy. 458/A.B of Kulasekharapuram village and the building situated therein.
2. The plaintiffs are two brothers who derived the plaint schedule property from their mother, Lakshmi Antharjanam. The main averments in the plaint are to the effect that the dilapidated building in the plaint schedule property was sold to one Adv. Sivarama Panicker as per Ext.A1 Sale Deed dated 10.08.1955 agreeing that the said Sivarama Panicker is free to either repair and continue to use the building or to reconstruct the same, and in case he continues to use the building after repairing, the plaint schedule property is given on ground rent for a period of three years @ Rs.55/- per annum to Lakshmi Antharjanam. Sivarama Panicker repaired the dilapidated building to its present condition. Sivarama Panicker sold his rights to the 1st defendant as per Ext.B1 document dt 26.03.1962. The defendants 2 to 6 are the tenants of the 1st defendant. Since the plaint schedule property was given to Sivarama Panicker, who was an Advocate, it is not for an industrial purpose, and hence, the 1st defendant, as his assignee, is not entitled to get any benefits under the Kerala Land Reforms Act. As per Ext.A1 Adv. Sivarama Panicker was given only a licence over the plaint schedule property for a period of three years.
3. The defendants 1, 2, 3, and 4 filed separate Written Statements opposing the suit prayers. The principal contention raised by the defendants was that the arrangement, as per Ext.A1, is a lease. Sivarama Panicker completed the construction of the building in the plaint schedule property, and he had been running a textile shop and other business establishments in the building. The 1st defendant is entitled to get fixity of tenure under S.106 of the Kerala Land Reforms Act.
4. The Trial Court framed the issues:
(2) Whether the defendants got the assignment of all the rights in Ext.A1?
(3) Whether Sivarama Panicker was a licensee of the plaint schedule property?
(4) Whether the defendants are entitled to get protection under S. 106 of the Kerala Land Reforms Act?
5. The claim with respect to fixity of tenure under S. 106 of the Kerala Land Reforms Act was referred to the Land Tribunal Kollam and the Land Tribunal by its order dated 07.06.1994 found that the defendants are not entitled to the benefits under S. 106 of the Kerala Land Reforms Act.
6. The 1st plaintiff was examined as PW-1, the Secretary of the 1st defendant is examined as DW-1. On the side of the plaintiff Exts.A1 to A6 were marked and on the side of the defendants Ext.B1 was marked.
7. The Trial Court dismissed the suit holding that Ext.A1 is in the nature of a lease deed and not a licence deed as claimed by the plaintiffs and that the defendants got assignment of all rights under Ext.A1.
8. The plaintiffs filed A.S. No. 89/1995 before the First Appellate Court and the said Appeal was allowed setting aside the judgment and decree passed by the Trial Court and allowing recovery of possession of the plaint schedule property and the building on payment of value of improvements to the 1st defendant to be fixed in the execution proceedings, declaring that the plaintiffs are entitled to realise ground rent at the rate of Rs.55/- per annum for three years prior to the filing of the suit and till the date of the judgment of the Appellate Court and at the rate of Rs.400/- per annum from the date of the Appellate Court judgment till
The court established that an arrangement characterized as a lease cannot be contested as a license, impacting the right to recover possession, which necessitates a suit for recovery rather than a ma....
Court can exercise its jurisdiction under Section 100 of the CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal.
Owner of immovable property on termination of license is entitled to maintain suit for mandatory injunction against licensee to vacate property.
Decreed mandatory injunction – Recovery of Possession – Appellant should not be denied relief merely because he had couched plaint in form of a suit for mandatory injunction - Petitioner entitled to ....
Mandatory injunctions require clear evidence of possession rights; mere claims of permissive possession undermined by admissions establishing tenant status.
Determination of lease vs licence hinges on the parties' intent and statutory interpretations concerning commercial properties, affirming precedent.
The court affirmed fixity of tenure under a historical lease but mandated remand for proof of title regarding the 'B' schedule property, emphasizing the necessity of establishing property identity an....
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