Dismissed

S. Vinayagamoorthy v. M/S. Tata Tea Limited

Kerala HC13 Jul 2012RSA/784/2012

Case brief

AI extract

What is this about?

This court dismissed two regular second appeals regarding possession disputes over residential buildings originally licensed to the appellants' father. The court found the suits maintainable as filing implied license termination. It dismissed appeals but granted the appellants until 31.03.2013 to vacate to avoid disrupting their children's education.

What did the court decide?

Appellants granted time to vacate buildings by 31.03.2013 without claiming additional rights, subject to conditions against structural changes or third-party possession.

S. Vinayagamoorthy Vs M/S. Tata Tea Limited — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934

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RSA.No. 784 of 2012 ()

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AS.38/2010 of II ADDITIONAL DISTRICT COURT,THODUPUZHA OS.79/2007 of MUNSIFF COURT, DEVIKULAM

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APPELLANT(S)/APPELLANTS/DEFENDANTS:

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S. VINAYAGAMOORTHY,

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S/O.LATE D.SELVARAJ, AGED 49 YEARS,

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RESIDING IN M.P.NO.IX/3270 (MP NO.IX/2487 EARLIER)

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10 ROOMS LINE, NEAR MUNNAR NALLATHANNI ROAD, MUNNAR KDH VILLAGE.

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S. RAJAN,

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S/O.LATE D.SELVARAJ, RESIDING IN M.P.NO.IX/3270 (MP NO.IX/2487 EARLIER) DO.... DO... DO....

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BY ADV. SRI.LATHEESH SEBASTIAN

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RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS:

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M/S. TATA TEA LIMITED,

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A PUBLIC LIMITED COMPANY INCORPORATED IN INDIA WITH ITS REGISTERED OFFICE AT BISHOP LEFORY ROAD, CALCUTTA AND REGISTERED OFFICE MUNNAR AT SPECIAL PROJECT OFFICE,

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G.H.COMPLEX, MUNNAR,

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KDH VILLAGE REPRESENTED BY KDHP CO.PVT.LTD, . MUNNAR POWER OF ATTORNEY HOLDER OF THE COMPANY KDH VILLAGE, DEVIKULAM -685613.

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K.D.H. PLANTATIONS COMPANY PVT. LTD.

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A PRIVATE COMPANY INCORPORATED IN INDIA WITH ITS REGISTERED OFFICE AT KDHP HOUSE NO.49,

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MUNNAR, KDH VILLAGE, DEVIKULAM TALUK- 685 613.

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BY ADV. SRI.V.ABRAHAM MARKOS

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BY ADV. SRI.MATHEWS K.UTHUPPACHAN BY ADV. SRI.BINU MATHEW BY ADV. SRI.TERRY V.JAMES BY ADV. SRI.B.J.JOHN PRAKASH BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-07-2012, ALONG WITH RSA NO.785/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. Nos.784 & 785 of 2012

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Dated this the 13^th day of July, 2012.

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JUDGMENT

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These appeals arise from the separate judgment and decree of learned II Additional District Judge, Thodupuzha in A.S.Nos.38 of 2010 and 37 of 2010, respectively which in turn arise from the judgment and decree of learned Munsiff, Devikulam in O.S. Nos.79 of 2007 and 49 of 2007, respectively.

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Since the parties to these appeals are the same and the contentions raised are also identical, these appeals are being disposed of by this common judgment.

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In R.S.A.No.784 of 2012 arising from O.S.No.79 of 2007 contention raised by the respondents/plaintiffs is that the building referred in the plaint schedule was put in the occupation of the father of the appellants who was an employee of the 1^st respondent as per Ext.A4, agreement of license dated 01.01.1992. After the death of the father, appellants continued their occupation on the same terms and conditions. Respondents contended that in spite of demand, appellants did not vacate the buildings and hence the suit.

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Appellants contended that they are entitled to occupy the premises. They also contended that there was no revocation of the license by appropriate notice.

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RSA Nos.784 & 785/2012

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In R.S.A.No.785 of 2012 arising from O.S.No.49 of 2007 the case of respondents is that the 1^st respondent had by Ext.A1, license agreement dated 01.01.1991 put the appellants in occupation of the building referred in the plaint schedule till 30.09.1992 for their residence since they were employees of the 1^st respondent. There was default in payment of the license fee from 1992 onwards and hence 1^st respondent filed O.S.No.32 of 2002 against the 1^st appellant for a declaration of title and recovery of possession. That suit was settled and a compromise decree (Ext.A3) was passed. 1^st appellant admitted title of the 1^st respondent, paid 7,940/- by way of license fee arrears and 1,000/- by way of court expenses to the 1^st respondent. License was extended for a further period of three years from 31.05.2004 stipulating license fee at `65/- per day. 1^st appellant was to execute an agreement to that effect. Respondents contended that the 2^nd respondent is a company formed by the employees of the 1^st respondent and it took on lease the estate of the 1^st respondent for a period of 30 years. Therefore, the building situated in the estate also is in the possession of the 2^nd respondent. On the strength of the above, respondents demanded vacant possession of the building from the appellants. Appellants resisted the suit raising various contentions including that the suit is premature since as per Ext.A3, compromise decree the license was extended for three years from 31.05.2004 but the suit was filed even before expiry of that time ie., 26.02.2007. There is no revocation of the license by appropriate notice and hence the suit is not maintainable.

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RSA Nos.784 & 785/2012

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Trial court in both the cases found in favour of the respondents and granted a decree. The first appellate court confirmed the judgment and decree in favour of the respondents.

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So far as R.S.A.No.784 of 2012 is concerned, it is contended that the findings of the courts below are erroneous. Learned counsel contended that there is no proper revocation of the license.

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Learned counsel who took notice for the respondents contended that the decision of the courts below based on facts involves no substantial question of law.

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So far as R.S.A.No.785 of 2012 is concerned, the main contention is that the suit is premature and that under Ext.A3, compromise decree, license agreement was extended for three years from 31.05.2004 but the suit is premature as it is filed on 26.02.2007. Learned counsel for respondent contended that even if it is assumed so, the period of license has expired during the pendency of the suit and that could be taken into account.

¶43

So far as the contention in both the cases that there is no proper notice terminating the license is concerned, I must notice that in R.S.A.No.784 of 2012 license was granted in favour of the father of appellants, he expired and on the same terms and conditions appellants continued the occupation of the buildings. Termination of license as per Sec.61 of the Easements Act (for short, “the Act”) could be express or implied. Filing of the plaint demanding

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RSA Nos.784 & 785/2012

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vacant possession is a mode of termination of the license by implication. Hence, the mere fact that there is no separate notice terminating the license does not affect the maintainability of the suit.

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In R.S.A.No.784, the next contention is that the suit is premature. Ext.A3, copy of compromise decree states that license was extended for a period of three years from 31.05.2004. That period is to expire by 30.05.2007 but the suit is filed on 26.02.2007. Assuming that O.S.No.49 of 2007 was instituted before expiry of the period of license, it is within the power of the respondents to revoke the license so far as there is no case that the license is not revocable, termination could be implied or express and the filing of the suit itself is implied termination of the license. That apart, during the pendency of the suit the period of license extended as per Ext.A3, compromise decree has expired and that can be taken note of by the courts in moulding the reliefs. The suit cannot be said to be premature for the said reason.

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On hearing the learned counsel on both sides I do not find any substantial question in these appeals requiring its admission.

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Learned counsel for the appellants submits that children of the appellants are school going, their accademic year ends only by 31.03.2013 and in the circumstances appellants may be allowed to continue their occupation of the buildings until 31.03.2013. It is also submitted by the learned

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RSA Nos.784 & 785/2012

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that if in the meantime appellants are evicted from the buildings the entire family will be dislocated and that will affect the education of the children, which may be avoided.

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Learned counsel for the respondents resisted the request and submitted that the suits were filed in the year, 2007. It is also submitted that at any rate request for time until 31.03.2013 is excessive.

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Having regard to the fact that appellants were employees of the respondents staying in the quarters allotted to them or atleast their father was an employee of the 1^st respondent and taking into account the fact that the education of the children will be affected if in the course of the education year they are dislocated, I am inclined to grant time as prayed for by the appellants. I am also inclined to think that by granting time till 31.03.2013, respondents are not going to be affected.

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Resultantly Second Appeals are dismissed. But the appellants are granted time to vacate the buildings in the suit property in both the cases as under and subject to the terms and conditions mentioned:

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i. Appellants shall vacate the buildings in O.S.Nos.49 of 2007 and 79 of 2007 of the court of learned Munsiff, Devikulam by 31.03.2013 without putting forth any claim or objection on any account, whatsoever.

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RSA Nos.784 & 785/2012

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ii. Appellants shall not put up any additional structures, interfere with the existing structures, transfer, encumber or induct third parties into the possession of the buildings.

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iii. Appellants shall file affidavits in the executing court in both the cases within two weeks from this day undertaking to comply with the above conditions.

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iv. In case any of the conditions above stated is violated, it will be open to the respondents to execute decree in both the cases notwithstanding the time granted hereby.

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v. Delivery proceedings against the appellants shall remain in abeyance until 31.03.2013 or till the appellants vacate the buildings or till the conditions are violated, whichever is earlier.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

S. Vinayagamoorthy v. M/S. Tata Tea Limited

Case brief

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S. Vinayagamoorthy v. M/S. Tata Tea Limited

Case brief

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