Allowed

Hussain v. Shah Arunkumar Gokuldas

Kerala HC2 Nov 2016RSA/748/2010

Case brief

AI extract

What is this about?

The Kerala High Court set aside concurrent findings converting 'permissive occupation' into a 'licensee' status due to lack of specific evidence regarding the transaction nature. The matter is remanded for a de novo enquiry with fresh framing of issues.

What did the court decide?

Impugned judgments and decrees set aside; matter remanded to the trial court for a de novo enquiry and fresh framing of issues.

Hussain Vs Shah Arunkumar Gokuldas — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938

¶5

RSA.No. 748 of 2010 (E)

¶6

AGAINST THE JUDGMENT&DECREE DATED 22-01-2010 IN AS 24/2008 of SUB COURT,KOCHI-5

¶7

AGAINST THE JUDGMENT&DECREE DATED 31-01-2008 IN OS 162/2007 of ADDL.MUNSIFF COURT,KOCHI

¶8

APPELLANT(S)/APPELLANT/DEFENDANT:

¶9

HUSSAIN, AGED 43 YEARS, S/O. KASIM ABDULLAH, DOOR NO. C.C.16/1525, GROUND FLOOR, SHEETAL BUILDING, OPP.KAIRALI FABRICS, ODAMPALLY ROAD, THOPPUMPADY,KOCHI-5.

¶10

BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS)

¶11

RESPONDENT(S)RESPONDENT/PLAINTIFF:

¶12

SHAH ARUNKUMAR GOKULDAS, AGED 58 YEARS, S/O. GOKULDAS, RESIDING AT DOOR NO. 16/974, SHEETAL, P.T.JACOB, ROAD, THOPPUMPADY, KOCHI-5.

¶13

BY ADV. SRI.S.SACHITHANANDA PAI

¶14

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

OKB

¶16

K.HARILAL, J.

¶17

R.S.A. No.748 of 2010

¶18

Dated this the 2^nd day of November, 2016

¶19

JUDGMENT

¶20

~ ~ ~ ~ ~

¶21

The appellant is the defendant in the Original Suit No.162/2007 of the Munsiff's Court, Kochi as well as the appellant in A.S.No.24/2008 of the Sub Court, Kochi. This Regular Second Appeal is filed challenging the concurrent findings, whereby the trial court decreed the suit and the appellate court dismissed the Appeal. The suit is one for mandatory injunction, directing the defendant to vacate the plaint schedule shop room and to pay damages for use and occupation. The plaintiff purchased the plaint schedule property and buildings thereon, comprising of the petition schedule shop room also, by virtue of Ext.A1 sale deed. According to the plaintiff, when he purchased the property and building, the defendant was in occupation of the plaint schedule shop room in continuation of his earlier occupation under the former landlord. After the purchase of the building by the plaintiff, the defendant assured that within a span of time the defendant would

¶22

RSA.748/10-E :2:

¶23

shift his business, without delay and the occupation by the defendant was purely permissive in character and such permission was liable to be revoked at the will of the plaintiff. But, the defendant has not vacated the shop room as assured by him. Thereupon, he caused to issue Ext.P3 lawyer's notice and thereafter instituted a suit, seeking mandatory injunction, in the absence of any response from the defendant to Ext.P3.

¶24

On the other hand, the defendant denied the nature of transaction as well as occupation alleged by the plaintiff and contended that he is a tenant, who is entitled to get protection under the provisions of the Kerala Building (Lease and Rent Control) Act, 1959. So, the suit itself is not maintainable under the relevant law applicable to the transaction. It is contended that after the sale of the property by the brothers-in-law of the plaintiff, all of them allowed the defendant to continue in the said shop room as a tenant on the same rate of rent per month. He denied the averment that the defendant was permitted to occupy the said shop room for a short while having regard to the factum of ownership of the shop room by this defendant earlier along with other co-owners and

¶25

RSA.748/10-E :3:

¶26

he has not made any assurance to vacate the premises, as alleged by the plaintiff. According to him, the contention that the occupation of the room by the defendant is purely permissive in character and such permission was liable to be revoked at the will of the plaintiff is absolutely false and hence denied. Further, it is contended that even after purchase of the property by the plaintiff he was receiving rent from the defendant every month regularly at the rate of Rs.600/- per month. But, no receipt was given to him requesting to execute a lease deed with the plaintiff by enhancing the monthly rent to Rs.750/-.

¶27

On the aforesaid rival pleadings, the trial court framed four issues and the basic issue framed by the trial court is, 'Is the defendant a licensee of the plaint schedule room?' Both the plaintiff and the defendant adduced oral and documentary evidence. The plaintiff was examined as PW1 and Exts.A1 to A5 were marked. The defendant was examined as DW1 and Exts.B1 and B2 were marked. After considering the evidence on record, the trial court decreed the suit directing the defendant to surrender vacant possession of the plaint schedule premises, within a period of one month from the date of

¶28

RSA.748/10-E :4:

¶29

judgment on a finding that the plaintiff has proved that the status of the defendant is only a licensee.

¶30

Feeling aggrieved, the defendant preferred appeal and the lower appellate court re-appreciated the evidence on record, after framing four points and concurred with the findings of the trial court, the trial court held that the defendant is only a licensee and the licence stands revoked by Ext.A3. The legality and propriety of the aforesaid findings, whereby the courts below rejected the contentions raised by the defendant are challenged in this Regular Second Appeal.

¶31

Heard the learned counsel for the appellant and the learned counsel for the respondent.

¶32

It is the case of the plaintiff that the transaction under which the defendant occupies the shop room is a permissive occupation and thereby he is liable to be evicted at his will and option. It is also admitted that the defendant was in occupation of the shop room when he purchased the plaint schedule building by Ext.A1. Ext.A2 prior title deed shows that the defendant was also a coowner of the property and building and thereafter he along with other co-owners transferred the property and

¶33

RSA.748/10-E :5:

¶34

building to his brothers-in-law from whom the plaintiff purchased the property by Ext.A1. Thus according to him, he was the tenant in the shop room from the period when the defendant's brothers-in-law are owners of the building. In a suit for eviction either under the Kerala Building (Lease and Rent Control) Act or any law governing transfer of property, the burden is heavy on the plaintiff to prove the nature of transaction under which the tenant occupies the shop room.

¶35

In the instant case, the concurrent finding of the courts below is that the defendant is a licensee. But going by the pleadings in paragraph-2 of the plaint, it could be seen that the plaintiff has averred in this way:“Aforesaid occupation by the defendant of the shop room was purely permissive in character and such permission was liable to be revoked at the will and option of the plaintiff.” More importantly, nowhere in the pleadings the legal expression “licensee” or “licence” finds a place. But the courts below arrived at a finding that the permissive occupation pleaded in the plaint is a licence. So also, on that impression, the trial court framed the first issue, “Is the defendant a licensee of the plaint schedule shop

¶36

RSA.748/10-E :6:

¶37

room”. This Court is of the view that the expression “permissive occupation” is not a legal expression attached with the rights and liabilities in any of the statute governing transfer of property. Whereas the legal expression “licensee” is specifically defined under Section 52 of the Easements Act, 1882. Further this Court is of the view that one cannot be a licensee or lessee without permission of the landlord. Therefore both licensee and lessee would fall under the broad expression “permissive occupation”. In the above view of the matter, this Court is of the opinion that the courts below misunderstood the basic pleading itself and conducted an enquiry on the basis of issues framed under the aforesaid wrong impression.

¶38

It is the case of the plaintiff that the defendant is a licensee who is liable to be evicted at his will and option. But no documentary evidence had been adduced to prove the exact nature of the rental arrangement. It is his case that the defendant was occupying the plaint schedule shop room as a licensee under earlier landlord and there was no lease arrangement between the defendant and the earlier landlord and such

¶39

RSA.748/10-E :7:

¶40

arrangement was further continued as such when he purchased the property under Ext.A1. Absolutely there is no evidence from the part of the plaintiff to prove the nature of licence arrangement between the defendant and the former landlord. Since the burden of proof was on the plaintiff it was incumbent upon him to prove the nature of rental arrangement, whatever it be.

¶41

The learned counsel for the respondent drew my attention to the discrepancies in the evidence of the defendant. But this Court is of the view that the plaintiff cannot succeed in the suit on the basis of the weakness of evidence of the defendant.

¶42

The above view is supported by the case of the plaintiff in Ext.A3 notice also. In Ext.A3 nowhere it is stated that the transaction between the plaintiff and the defendant was a licence arrangement. It is stated that, “You were permitted to occupy the said shop room for a short while having regard to the factum of ownership of the property by you along with other co-owners as the aforesaid occupation by you of the said shop room was purely permissive character and such a permission was liable to be revoked at the will and option of my client.”

¶43

RSA.748/10-E :8:

¶44

Here also this Court is of the opinion that from the expression “permissive occupation” it can never be legally presumed that it is a licence only. Any occupation under permission can be termed as permissive occupation. In fact, both parties failed to adduce evidence to prove the exact nature of transaction under which possession of the shop room was transferred to the defendant either by the prior land owner or by the plaintiff. But, the courts below miserably failed to consider the crux of the dispute. But it appears that the courts below are carried away by

¶45

the inference drawn from the oral deposition of the witnesses. Thus, the matter in dispute required a De novo enquiry afresh. Consequently, the impugned judgments/decrees are set aside and the matter will stand remanded to the trial court for fresh trial.

¶46

All pending interlocutory applications will stand closed.

¶47

Sd/-

¶48

K.HARILAL, Judge.

¶49

dst/okb

Hussain v. Shah Arunkumar Gokuldas

Case brief

What is this about?

What did the court decide?

Hussain v. Shah Arunkumar Gokuldas

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

M. Poonkothal Vs Albin. P.J

State of Kerala Vs St.Mary'S Syrian Orthodox Yacobaya Church

Ayalath Chirutha and Others Vs Thuvakkatte Padmini

Hameed Rawther Vs Abdul Latheef

T.a.Abdul Khader Vs M.T.Joseph

Elias Chacko Vs State of Kerala and Others