J U D G M E N T

The plaintiff is the appellant in this Second Appeal.

The case of the plaintiff is that the first defendant was given the licence by the second defendant Municipality to run a flower shop. The plaintiff seems to have entered into an agreement with the second defendant on 17.02.1996, marked as Ex.A.1. As per this agreement, the plaintiff claims to have been put in possession of the shop and he had paid the consideration of nearly Rs.1,00,000/-. The further case of the plaintiff is that the defendant agreed to effect the change of name for the shop by making an application to the second defendant Municipality, in the name of the plaintiff. Till this process is completed, the plaintiff had agreed to pay the monthly rent to the second defendant Municipality in the name of the first defendant.

2. The grievance of the plaintiff is that the first defendant acted against the agreement and attempted to interfere with the possession and enjoyment of the suit property. Left with no other alternative, the suit came to be filed seeking for the relief of permanent injunction against the first defendant.

3. The first defendant filed a written statement and took a stand that the suit property belongs to the second defendant Municipality and the so called agreement marked as Ex.A.1 was a created document. The first defendant virtually questioned the very right of the plaintiff to seek for the relief of permanent injunction and accordingly he sought for the dismissal of the suit.

4. Both the Courts below, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, concurrently held against the plaintiff and dismissed the suit. Aggrieved by the same, the plaintiff has filed this Second Appeal before this Court.

5. One important development that had taken place during the pendency of this Second Appeal is that the first defendant who was the first respondent in the Second Appeal died and in his place his legal representatives have been impleaded as respondents 3 to 5.

6. Heard Mr.C.P.Sivamohan, learned counsel for the appellant, Mr.D.Gopal, learned counsel for the second respondent and Mr.Jaseem Mudassar Ali, learned counsel for the respondents 3 to 5. This Court also carefully perused the materials available on record and the findings of both the Courts below.

7. Both the Courts below concurrently held that the shop was allotted in favour of the first defendant by the second defendant Municipality and whatever documents were filed and relied upon by the plaintiff stood in the name of the first defendant. Both the Courts also found that Ex.A.1 agreement cannot be acted upon and there was absolutely no proof to show that the plaintiff is in possession and enjoyment of the suit property. The Courts below also took into consideration the evidence of P.W.1 and questioned the manner in which the possession was taken over by the plaintiff. On a cumulative consideration of the oral and documentary evidence, both the Courts held that the plaintiff did not establish legal possession in the suit property and that he will not be entitled for possession when the shop was allotted in the name of the first defendant by the second defendant Municipality. The Courts below also found that the plaintiff was claiming for possession in a property which admittedly belongs to the second respondent Municipality.

8. The demise of the first respondent / first defendant in the Second Appeal has a lot of significance in the present case. A careful reading of the pleadings shows that the entire allegation about the attempt being made to interfere with the possession and enjoyment of the suit property has been made against the first defendant in his individual capacity. The relief of permanent injunction sought for with a specific allegation made against a particular person who is shown as the defendant in the suit, must confine to that person. It is under these circumstances, the legal maxim Actio personalis moritur