The High Court of Kerala dismissed the second appeal filed by the seller against a decree for mandatory injunction. The court upheld the licensee's liability to vacate the property after the licence period expired, rejecting the plea of fraud and non est factum.
The second appeal, all pending interlocutory applications, and the impugned decrees were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934
RSA.NO. 668 OF 2012 ()
AS.56/2003 OF SUB COURT, CHERTHALA OS.133/1998 OF PRINCIPAL MUNSIFF'S COURT, CHERTHALA
APPELLANT(S)/APPELLANT/DEFENDANT:
K.S. PAVANAN,, AGED 62 YEARS S/O.SANKARAN,SANEESH BHAVAN FROM KOCHUPARAMBIL PANAVALLY VILLAGE,CHERTHALA TALUK.
BY ADVS.SRI.ABRAHAM P.GEORGE SMT.M.SANTHY
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
VIJAYAKUMAR,, AGED 60 YEARS S/O.PETER,CHIRAYIL VEEDU,ERAMALLOOR MURI EZHUPUNNAVILLAGE VILLAGE,CHERTHALA TALUK.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
==================================== R.S.A. No.668 of 2012
==================================== Dated this the 04th day of June, 2012
J U D G M E N T
Defendant in O.S. No.133 of 1998 of the court of learned Munsiff, Cherthala is aggrieved by the decree for mandatory injunction for removal of the house in the suit property as confirmed by the learned Sub Judge, Cherthala in A.S. No.56 of 2003.
R.S.A. No.668 of 2012
-: 2 :-
Appellant continued in possession of the property and occupation of the thatched shed situated therein. It is his case that he happened to sign Ext.A1 on the representation made by the respondent that it is a deed of mortgage as security of the loan transaction. He had not read the document before it was signed. He also claimed that the document was executed as a security for the loan transaction.
R.S.A. No.668 of 2012
-: 3 :-
the admitted circumstances remedy of the respondent was to sue for recovery of possession on the strength of his title. Learned counsel has placed reliance on the decision in
Aspinwall and Co. Ltd. v. Soudamini Amma (1974 KLT 781). It is also contended that evidence on record is sufficient to show that Ext.A1 was either got executed fraudulently or as security for the due repayment of the loan.
R.S.A. No.668 of 2012
-: 4 :-
persons who are blind, illiterate or persons who by fraudulent means were not able to read the document. A plea of non-est factum is available only to persons who are either illiterate or blind or due to any temporary or permanent reasons was unable to read and understand the document or by fraud was prevented from reading or understanding it. If on the other hand appellant signed the document without reading it due to his own negligence, he takes the risk of signing the document without reading it, he is bound by it and cannot raise a plea of non-est factum.
R.S.A. No.668 of 2012
-: 5 :-
Ext.X1 series for payment of loan to the appellant from the Trust. Exhibit X1 series, Exts.B9 and B10 series are produced to show that nuts were plucked from the coconut tress standing in the property for discharge of the liability referred by D.W4 in his evidence. D.W.4 has stated that he is residing 20 feet away from the suit property. D.W.5 proved Ext.B11, copy of sale deed executed in favour of one Subair and another (obviously to show that consideration mentioned in Ext.A1 was alarmingly low). Trial court found that the suit property abuts the main road. D.W.6 is a coconut tree climber examined by the appellant to prove his possession.
R.S.A. No.668 of 2012
-: 6 :-
recovery of possession. It is held in Aspinwall and Co. Ltd. v. Soudamini Amma (supra) that a mere licence only makes an act lawful which without it would be unlawful and that 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 control or possession of the property through his licensee.
R.S.A. No.668 of 2012
-: 7 :-
property for discharge of liability is admittedly after Ext.A1. It is seen that Ext.B9 and B10 series, receipts are issued in favour of the appellant only after respondent issued Ext.A2, notice dated 08.12.1997. If that be so, assertion of right over the property at the instance of appellant comes only after respondent demanded the appellant to vacate the suit property by Ext.A2, notice dated 08.12.1997 and not before that. Appellant cannot by his unilateral act immediately after 08.12.1997 compel the respondent to bring a suit for recovery of possession.
R.S.A. No.668 of 2012
-: 8 :-
injunction cannot be said to be bad in law.
Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv
3 issues framed by the court
Whether a suit for mandatory injunction against a licensee is maintainable after the expiry of the licence period.
Whether the appellant's plea of non est factum is tenable when he signed the document without reading it due to negligence.
Whether the law frame and evidence are sufficient to support the decree for removal of the thatched shed.
Colour shows how this judgement treated each authority
Aspinwall and Co. Ltd. v. Soudamini AmmaReferred¶29
Aspinwall and Co. Ltd. v. Soudamini Amma (1974 KLT 781)
Muthu v. CherchiFollowed¶32
Muthu v. Cherchi (1990 [1] KLT 416)
Ayissa v. AmiReferred¶45
Ayissa v. Ami (1990 [1] KLT 98)
Joseph Severance v. Benny MathewReferred¶45
Joseph Severance v. Benny Mathew (2005 [4] KLT 290 (SC)
4 provisions across 4 enactments
K.S. Pavananan
Vijayakumar
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
