Dismissed

A.T.Sivaprasad v. Jose Mathew

Kerala HC14 Oct 2016RSA/930/2016

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeal where the appellant contested the dismissal of his suit for a permanent prohibitory injunction. The court upheld findings that no irrevocable licence existed under Section 60(b) of the Indian Easement Act and that the appellant was liable to vacate under a revocable licence agreement.

What did the court decide?

Disallowed the appeal; upheld the lower court's judgment dismissing the suit for injunction and allowing the counterclaim.

A.T.Sivaprasad Vs Jose Mathew — Landlord and Tenant | Kerala HC (2016)

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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 K.HARILAL

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FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938

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RSA.No. 930 of 2016 (B)

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AGAINST THE COMMON JUDGMENT & DECREE DATED 24-02-2016 IN AS 7/2015 & 8/2015 of SUB COURT, THIRUVALLA

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AGAINST THE JUDGMENT & DECREE DATED 20-12-2014 IN OS 312/2010 of MUNSIFF COURT, THIRUVALLA

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APPELLANT/APPELLANT/PLAINTIFF IN SUIT & DEFENDANT IN COUNTER CLAIM:

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A.T.SIVAPRASAD

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AGED 56 YEARS, S/O THANKAPPAN PILLAI, ARAPPURAKKAL VEEDU, WEST OTHARA P.O., KUTTOOR VILLAGE, THIRUVALLA TALUK.

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BY ADV. SRI.K.N.RADHAKRISHNAN

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RESPONDENT/RESPONDENT/DEFENDANTS:

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1. JOSE MATHEW

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AGED ABOUT 58 YEARS, HUSBAND OF SUSAN MATHEW, KOTTARAKKALATHIL VEEDU, WEST OTHARA P.O., KUTTOOR VILLAGE, THIRUVALLA TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HODLER GEORGE, KOTTARAKKALATHIL VEEDU, WEST OTHARA P.O., KUTTOOR VILLAGE, THIRUVALLA TALUK, PIN:689546.

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...2

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RSA.No. 930 of 2016 (B)

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SUSAN MATHEW AGED ABOUT 56 YEARS, W/O JOSE MATHEW, KOTTARAKKALATHIL VEEDU, WEST OTHARA P.O., KUTTOOR VILLAGE, THIRUVALLA TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER GEORGE, KOTTARAKKALATHIL VEEDU, WEST OTHARA P.O., KUTTOOR VILLAGE, THIRUVALLA TALUK, PIN:689546.

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GEORGE AGED BAOUT 62 YEARS, KOTTARAKKALATHIL VEEDU, WEST OTHARA P.O., KUTTOOR VILLAGE, THIRUVALLA TALUK, PIN:689546.

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R1-R3 BY ADVS. SRI.K.RAMAKUMAR (SENIOR) SRI.T.RAMAPRASAD UNNI SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.S.M.PRASANTH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.930 of 2016

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Dated this the 14^th day of October, 2016

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JUDGMENT

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The appellant is the plaintiff who has suffered failure before the courts below in the original suit as well as in the appeal. He filed O.S.No.312/2010 seeking permanent prohibitory injunction against the forceful eviction from the plaint schedule item Nos.2 to 4. The respondents denied the right asserted by the plaintiff and filed a counter claim for mandatory injunction to evict the plaintiff from the plaint schedule item Nos.2 and 3 and for recovery of the arrears of rent. The plaintiff claimed protection under Section 60(b) of the Indian Easement Act, 1882, (for short, “the Act”) and contended that the licence granted to him to construct a building and conduct business therein is an irrevocable licence under Section 60(b) of the Act.

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On the above pleadings, the trial court considered the evidence on record and dismissed the suit on a finding that there is no pleadings or evidence

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RSA.930/16-B

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-2-

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claiming irrevocable licence under Section 60(b) of the Act and the plaintiff failed to establish the nature of right accrued to him, over item Nos.2 to 4 of the plaint schedule property. Though the plaintiff has preferred Appeals challenging the dismissal of the suit and the decree allowing the counter claim, before the lower appellate court, after analysing the evidence on record, the appellate court also dismissed the Appeals confirming the finding that the plaintiff miserably failed to plead or prove the facts constituting irrevocable licence under Section 60(b) of the Act. The legality and propriety of the findings whereby the courts below concurrently rejected the claim of the plaintiff and allowing the counterclaim are assailed in this Regular Second Appeal.

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Heard the learned counsel for the appellant, who advanced arguments assailing the concurrent findings of the courts below that the plaintiff has failed to plead or prove the facts constituting irrevocable licence contemplated under Section 60(b) of the Act. It is also contended that even in the absence of the

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RSA.930/16-B

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-3-

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pleadings the courts below ought to have framed an issue whether the licence granted to the appellant was an irrevocable licence falling under Section 60(b) of the Act. This argument also put up as a question of law in this Appeal.

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It is not disputed that the land belongs to the deceased K.K.Cherian, the father of the 2^nd defendant, and he permitted the plaintiff to occupy the property for conducting the business. According to the plaintiff, he has constructed item No.2 hall and item No.3 kitchen situated in the said property and the construction was made 20 and 15 years back respectively. The plaint schedule item No.4 room in item No.1 building was taken on rent by the plaintiff from Cherian 20 years back for a monthly rent of Rs.600/- which was later enhanced to Rs.1275/-. According to the plaintiff, he had spent huge amount for constructing the aforesaid item Nos.2 and 3. There is no landlord-tenant relationship between them. So the plaintiff cannot be evicted without granting compensation for the value of improvements and his investment in the property. Rent Control Act is not

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RSA.930/16-B

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-4-

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applicable to that area.

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In the written statement, the defendants contended that the building was constructed by the deceased Cherian himself while he was alive and as per the permission granted by him the plaintiff was conducting Art Centre and Advertising Agency, for a licence fee of Rs.600/- per month, in the plaint schedule item Nos.2 and 3. The plaintiff is continuing there, after the expiry of licence period and doing hotel business on the basis of that expired licence. The licence fee is Rs.1,275/-; but, the same was paid till November 2009 only. After the death of Cherian, a licence agreement was executed between the 2^nd defendant and the plaintiff on 1.8.2007. It is specifically contended that Cherian had not given any permission or consent for any construction in the property. So, on the expiry of licence, which stood expired on 1.7.2008, the plaintiff was liable to vacate the premises. On the above pleadings they prayed for passing a decree for eviction against the plaintiff.

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Going by the judgment passed by the trial court,

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RSA.930/16-B

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-5-

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the trial court has framed five issues on the basis of the pleadings and analysed the evidence of P.Ws.1 to 4, Exts.A1 to A4, and C1 to C1(a), on the side of the plaintiff and D.W.1 was examined and Exts.B1 to B10 were marked on the side of the defendants.

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It stands admitted that the plaintiff is in occupation of the plaint schedule buildings. But the question is, what is the nature of right accrued to him. It is the case of the plaintiff that the licence granted to him to construct the building was an irrevocable licence, not liable to be revoked by the grantor as he has constructed item Nos.2 and 3 in the said property. On the other hand, the defendants contended that the buildings were constructed by the deceased Cherian himself before granting permission to the plaintiff to conduct business.

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After analysing the pleadings in the plaint, the courts below concurrently arrived at a finding that there is no pleading constituting the facts claiming right under Section 60(b) of the Act. I have meticulously perused the plaint averments. Going by the averments it could be seen that the plaintiff has no case that he has

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RSA.930/16-B

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-6-

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acted upon the licence and executed work of permanent character and incurred expenses in the execution. There is no claim for declaration of right under Section 60(b) of the Act. Even if the pleadings are lacking during the course of evidence, the plaintiff made an attempt to make a case that he had constructed the buildings spending huge amount and P.Ws.2 and 3 were examined to prove the same. After analysing the evidence on P.Ws.2 and 3, the courts below concurrently arrived at a finding that the evidence of P.Ws.2 and 3 cannot be relied upon and they are not competent to speak about the nature of transaction between the plaintiff and the deceased Cherian. As rightly held by the courts below, the carpenter and the mason who had allegedly participated in the construction of the buildings 20 years back as labourers are not supposed to speak about the total amount spent for construction or the terms of agreement between the landlord and the tenant or the source of money which they have received as wages. The plaintiff miserably failed to prove his claim that he had constructed the buildings.

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RSA.930/16-B

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-7-

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The learned counsel for the appellant contended that even in the absence of pleadings the trial court ought to have framed the issue, whether the plaintiff is entitled to get protection under Section 60(b) of the Act. I am unable to countenance the said argument in view of the relevant law under the C.P.C. According to Order VI Rule (1) of the C.P.C., “pleading” shall mean plaint or written statement. Order XIV deals with framing of issues. According to Rule 1 of Order XIV, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in an order to show a right to sue or a defendant must allege in order to constitute his defence and each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. In the light of the aforesaid specific provisions, it could be held that unless material propositions of law or fact constituting the case of the plaintiff are affirmed, no issue can be framed. If that be so, the trial court is justified in not framing an issue as

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RSA.930/16-B

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-8-

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regards the claim of right under Section 60(b) of the Act, particularly, in the absence of pleadings.

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The nature of right accrued upon the plaintiff is evident from Ext.B1 agreement executed between the plaintiff and the 2^nd defendant. Ext.B1 shows that there is a licence agreement between the plaintiff and the 2^nd defendant and licence fee is Rs.1275/-. There is a clear stipulation in Ext.B1 that licensee shall not make or permit to be made any alteration or addition of the room without obtaining consent in writing of the landlord. The term of 11 months was also fixed in Ext.B1 itself. A revocable licence is evidenced from the terms of Ext.B1 licence agreement. If it is a revocable licence, the licence period would come to an end on the expiry of the term of licence.

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Then the question to be considered is whether the licence has been terminated in accordance with law. It is not disputed that the 2^nd defendant had sent notice alleging licence between the plaintiff and the 2^nd defendant and the same is evidenced by Ext.B4 acknowledgment. As it is a revocable licence, sending a

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RSA.930/16-B

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-9-

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notice informing the licensee that the grantor of licence revoked the licence is sufficient to end the licence. Being a licensee under a revoked licence, the plaintiff is not entitled to get a permanent prohibitory injunction against the defendants and he is liable to vacate the premises, in adherence to Ext.B1 licence agreement. In the above analysis, it can be safely concluded that the courts below rightly considered the evidence on record and arrived at a just and proper finding that the plaintiff has miserably failed to prove the right under Section 60(b) of the Indian Easement Act. On the other hand, the defendants succeeded in proving a revocable licence under Ext.B1 licence agreement. There is no illegality or impropriety in any of the findings, in the impugned judgments. Hence this Regular Second Appeal stands dismissed.

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K.HARILAL, Judge.

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okb

A.T.Sivaprasad v. Jose Mathew

Case brief

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A.T.Sivaprasad v. Jose Mathew

Case brief

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