Whether mandatory injunction can be granted for vacation of property by person in permissive possession of property?

IN THE HIGH COURT OF KERALA

R.S.A. No. 1278 of 2010

Decided On: 18.02.2014

Abraham Mathew
Vs.
Mariamma Yohannan

Hon’ble Judges/Coram:K. Harilal, J.
Citation: 2015(1) RCR (RENT)19

1. The appellants herein are the defendants in O.S. No. 166/05 on the files of the Munsiff’s Court, Ranni, as well as the appellants in A.S. No. 24/08 before the Additional District Court, Pathanamthitta. The respondent was the plaintiff in the Trial Court and the respondent in the lower Appellate Court. The suit was one for mandatory injunction, seeking a direction against the defendants to surrender the possession of the plaint schedule property and the building therein and in the event of defendants refusing to do so to evict them through Court and also for a permanent prohibitory injunction restraining the defendants from committing any acts of waste in the property.

2. Briefly put, the averments in the plaint are as follows: The plaintiff is the wife of one Yohannan, the deceased younger brother of the 1st appellant. The 2nd and 3rd defendants are the wife and son of the 1st defendant. According to the plaintiff, the plaint schedule property belonged to the above said Yohannan, as per sale deed No. 911/1977 of Ranni SRO. After the death of Yohannan on 03/02/1990, the property devolved upon the plaintiff and her two children – Sabina and Jobina. As the plaintiff and her husband were working in Germany, in order to safeguard the welfare of the children, who were studying in Kerala, the management of the plaint schedule property and the building therein was entrusted to the 1st defendant, who is the elder brother of the plaintiff’s husband. Thus, permission was given to reside in the building for the better interest of their property and children studying in Kerala. Thereafter, the 1st defendant and his family members have been residing in the building in the plaint schedule property under the permission granted by Yohannan. Thus, the 1st defendant was acting only as an agent of Yohannan. Now, the plaintiff has revoked the above said permission and the defendants were asked to vacate the building. But the defendants are not willing to surrender possession of the property and to vacate the building thereon. Hence they filed the above suit and prayed for as stated above.

3. The defendants filed a written statement raising the following contentions: The plaint schedule property and the building therein are in the absolute possession and enjoyment of the 1st defendant and he is residing in the building with his family. After the purchase of the property, the 1st defendant renovated the building. Though the sale deed stands in the name of Yohannan as the owner of the property, the sale consideration was paid by the 1st defendant and from the date of execution of the sale deed, he has been in possession and enjoyment of the property. Therefore, Yohannan had no right over the plaint schedule property, and as such, the plaintiff being the legal heir of the deceased Yohannan also has no right over the property. No right had been devolved on them by the death of Yohannan. The suit is bad for non-joinder of necessary parties. The plaintiff and the children are not made parties in the suit. Simple suit for mandatory injunction is not maintainable and even if the allegations are true, the plaintiff ought to have filed a suit for recovery of possession. Similarly, the plaintiff has not impleaded the 1st defendant’s daughter and two sons. As the property is in the possession of the 1st defendant, after 25/03/1977, the date of execution of the sale deed he has acquired right by adverse possession over the property and the building therein. Hence he prayed for dismissal of the suit.

4. The Court below, after considering the pleadings and evidence which consist of oral testimony of PWs. 1 to 3, DWs. 1 to 3 and Exts. A1 to A8, B1 to B8 and X1 to X4, decreed the suit. Feeling aggrieved, though the defendants had preferred the above appeal, the Appellate Court also confirmed the findings of the Court below and dismissed the appeal. This RSA is filed challenging the concurrent findings decreeing the suit as prayed for.

5. Heard Sri. T. Krishnan Unni, the learned Senior Counsel for the appellants. Heard Sri. Bechu Kurian Thomas, the learned counsel for the respondent.

6. The main thrust of the argument advanced by the learned Senior Counsel Sri. Krishnan Unni is that the Court below concurrently failed to consider the question whether the suit for mandatory injunction simpliciter requiring vacation of the property alone is sufficient and maintainable against the licensee or a person in permissive possession after the termination of licence or revocation of permission. The Courts below ought to have considered the question of maintainability of the suit as a preliminary issue, though such a ground was raised in the written statement. Secondly, the Court below failed to consider the pleadings of adverse possession and the evidence available on record thereunder in its correct perspective. From the evidence on record, it is manifestly clear that the defendants have made out and established all the ingredients of adverse possession. Thirdly, the suit was bad for non-joinder of necessary parties. All the legal heirs of the deceased Yohannan are not made parties in the suit. Similarly, all the children of the 1st defendant also are not made parties in the Original Suit.

7. Per contra, the learned counsel for the plaintiff advanced arguments to justify the findings in the judgments under challenge. According to the learned counsel, the relief’s sought for in the suit are proper and maintainable in view of the pleadings in the suit. A suit for mandatory injunction simpliciter requiring the defendants to vacate the property is maintainable in view of the facts and circumstances of the case. Secondly, the learned counsel for the plaintiff contended that the pleadings in the written statements are mutually opposed and destructive. In short, the right of adverse possession can be claimed against the true owner of the property. One cannot be a true owner as well as a person in adverse possession simultaneously; but the defendants have pleaded both rights. The reliefs sought for are against the persons who are residing in the property and there is no need to seek any relief against the persons who are not residing in the property or holding the property. Similarly, in a suit for injunction, one co-owner can maintain the suit for and on behalf of other co-owners also so long as the plaintiff does not claim exclusive right or exclusive possession. According to the learned counsel, at all points, the findings arrived at by the Courts below are justifiable.

8. I have given my anxious consideration to the arguments advanced by the counsel appearing for both parties at the Bar. In view of the rival contentions, the first question that arises for consideration is whether a suit for mandatory injunction simpliciter requiring vacation of the property is maintainable against the licensee or a person in permissive occupation whose licence or occupation has been terminated by the licensor? To consider the question in controversy, it is worthwhile to quote the relevant Sections.

9. Section 39 of the Specific Relief Act, 1963, reads as follows:

Mandatory injunctions.–When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
10. Section 52 of the Indian Easement Act, 1882, reads as follows:

“License” defined.–Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
11. Let us make a combined analysis of Section 52 of the Indian Easement Act and Section 39 of the Specific Relief Act, to determine the question arose above. Licence is a permission granted to the licensee to do or continue to do some act in or upon the immovable property. But the granting of that permission does not create any interest in the property and in the absence of such permission the act would be an unlawful one also. Licensee may be the actual occupant of the property and there cannot be an element of animus possidendi. A licensee has only a right of occupation with the permission of licensor and his possession is not a juridical possession. Since the permission granted is a limited one, which does not cause to create an interest in the property, the licensor has a right to revoke the permission which he had given earlier. Necessarily, such revocation correspondingly casts an obligation on the licensee to vacate the property in obedience to the revocation of permission. If that be so, if the licensee fails to perform his obligation, i.e., vacation of the property, the Court can issue a mandatory injunction to prevent the breach of said obligation and to compel the vacation of the immovable property. Thus, a combined analysis of Section itself makes the issuance of mandatory injunction against the licensee to vacate the property in possession of licensee within the legislative sanction under Section 52 of the Indian Easement Act and under Section 39 of the Specific Relief Act.

12. It follows that such mandatory injunction order to vacate the property is an enforceable one under Order XXI Rule 32, particularly, in view of Explanation under sub-rule (5) of Order XXI, which clarifies that “the act required to be done covers both prohibitory as well as mandatory injunction”.

13. The learned Senior Counsel for the appellants further submits that the possession, though it was commenced as a permissive one, it can be subsequently ripened to hostile possession against the true owner of the property, by long uninterpreted and peaceful possession, after the revocation of licence or permission. In such event, the licensee, who is not willing to vacate the property can be treated as a trespasser with “animus possidendi” and in such case licensor will have to file a suit for recovery of possession. In the instance case, the defendants have been continuing in possession of the property and building therein since the last more than 12 years and in such circumstance the appellants cannot be evicted by filing a simple suit for mandatory injunction to vacate the property.

14. Per contra, the learned counsel for the respondent drew my attention to the decisions in Sant Lal Jain v. Avtar Singh MANU/SC/0295/1985 : 1985 KHC 590 : 1985 (2) SCC 332 : AIR 1985 SC 857, Joseph Severance v. Benny Mathew MANU/SC/0664/2005 : 2005 KHC 1436 : 2005 (7) SCC 667 : 2005 (4) KLT 290 and Aspinwal & Co. Ltd. v. Soudamini Amma 1974 KHC 156 : 1974 KLT 681 and contended that if the licensor had filed the suit with promptitude within a reasonable time, a suit for mandatory injunction to vacate the premises alone is sufficient and maintainable to get a proper relief, even if the licensee continues his occupation after the termination of licence.

15. What is the circumstance in which permissive possession can be ripened to or converted to hostile possession, after the revocation of licence or permission, requiring suit for recovery of possession? What is the real test for determining the possibility of such conversion?

16. In Sant Lal Jain’s case (supra), the Supreme Court held as follows:

In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense.
17. In Joseph Severance’s case (supra), the Supreme Court held as follows:

The correct position in-law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. The licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case the licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict the licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee’s occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises, the suit will be maintainable.
18. Even after the termination of the licence, the licensee may have to continue to be in occupation of the premises for some time, because in many cases the licensee may require some reasonable time to remove the materials belonging to him and quit the place. But, during such time also, the licensor will be deemed to be in possession through his licensee, because the licensee cannot have any independent or separate interest in the premises. In that case, a licensee cannot possibly be treated as a trespasser. Further, it is held that it will be difficult to make a distinction in actual practice as to when a licensee becomes a trespasser and upto what time he will continue to be a licensee. There can be a more definite test. If on the expiry of the licence an assertion of a hostile title is made by the licensee and the licensor slept over the matter, then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser. Under such circumstances, the licensor will have to sue for recovery of possession and a suit for a mandatory injunction under Section 39 of the Specific Relief Act, 1963, will not be the remedy. Put it differently, the real test is whether on the expiry of licence the licensee has asserted his hostile title and whether the licensor had slept over the matter despite the assertion of hostile title made by the licensee, after the termination of licence?

19. When we apply the above test in the instance case, it is the specific case in paragraph 9 of the plaint that on 15/06/2005, the plaintiff revoked the permission granted to the 1st defendant to reside in the property and the 1st defendant was asked to vacate the premises. But, he was not willing to vacate the premises. Immediately, on 5th September, 2005 itself, he filed the present suit seeking mandatory injunction to vacate the property and the building therein. It cannot be held that the defendants asserted their hostile title or the plaintiff slept over the matter despite the hostile assertion of title by the 1st defendant.

20. Coming to the pleadings in the plaint, it is the specific case of the plaintiff that the plaint schedule property and the building therein absolutely belonged to Yohannan, the husband of the plaintiff and by the death of Yohannan, the property and the building devolved upon the plaintiff and their children and now they are the owners in possession and enjoyment of the property. The 1st defendant had no right over the property. But, considering the relationship as brothers and also for the convenience of the education of their children in Kerala, Yohannan had granted permission to the 1st defendant to reside in the said property for the proper management and care of the property; so also, their children. It is to be remembered that a licence is a permission to do something in the property; otherwise not permissible and unlawful. According to the pleadings, the 1st defendant had no kind of right over the property. But, Yohannan granted permission to reside in the property. Such permission granted to the 1st defendant does not create any right or interest in the property and the building therein. If that be so, it is obligatory on the part of the 1st defendant to vacate the property and building as and when required by the granter. Put it differently, there is an obligation on the part of the 1st defendant to vacate the premises as and when the granter requires to do so. If the licensee is not willing to vacate the premises, there arises a breach of an obligation also. In that circumstance, it is proper for the licensor to approach the Court for mandatory injunction to compel the licensee the performance of obligation to vacate the premises.

21. Therefore, it can be held that the suit for mandatory injunction simpliciter requiring vacation of property is maintainable against a licensee or a person in permissive occupation whose licence or occupation has been terminated if he had sought for mandatory injunction with promptitude within a reasonable time after the termination of licence or permissive occupation.

22. The next question to be considered is whether the Court below can be justified in finding that the defendants are not entitled to get the benefit of adverse possession? The point is, whether the defendants have succeeded to prove the right of adverse possession against the plaintiff?

23. More importantly, one cannot claim and plead true ownership and right of the adverse possession at a time. Animus possidendi is the soul of the right of adverse possession. Needless to say, that adverse possession is a hostile possession against the true owner of the property. It is also the case of the 1st defendant that he is the owner of the property as he had paid the actual consideration of the same and he has been paying tax for the same. If that be so, as rightly argued by the learned counsel for the plaintiff, the pleadings are mutually opposed and destructive, rendering both invalid and unsustainable. Both pleadings will not be simultaneously maintainable.

24. If initial possession is permissive, the burden is heavy on the licensee to prove that it has become adverse after the termination of licence and continued as hostile against the true owner. Where the possession of a licensee becomes adverse, after the termination of licence, his possession adverse to the knowledge of the licensor must be proved by cogent and convincing evidence. Mere possession for however length of time does not result in converting the permissive possession to the adverse possession.

25. Coming to the evidence, there are two sets of evidence. The plaintiffs evidence consists of the oral evidence of PWs. 1 to 3 and Exts. X1 to X4 and A1 to A8. The defendants’ evidence consists of the oral evidence of DWs. 1 to 3 and Exts. B1 to B8. The plaintiff was examined as PW 1. The certified copy of the sale deed is marked as Ext. A1. The jurisdiction of this Court to interfere with the findings of fact under Section 100 of the CPC is limited to case where the finding is either perverse or based on no evidence. This Court cannot interfere with the concurrent findings of facts until or unless the same is perverse or contrary to materials on record. [See, Sugani (Mst.) v. Rameshwar Das and Another MANU/SC/8106/2006 : 2006 KHC 1288 : 2006 (11) SCC 587 : JT 2006 (11) SC 268, Gurudev Kaur and Others v. Kalki and Others MANU/SC/2699/2006 : 2006 KHC 1170 : 2007 (1) SCC 546 : JT 2006 (5) SC 72 : AIR 2006 SC 1975 : 2007 AIR SCW 3741 & Narayan Rajendran and Another v. Lekshmi Sarojini and Others MANU/SC/0212/2009 : 2009 KHC 4433 : 2009 (5) SCC 264 : ILR 2009 (2) Ker. 269 : 2009 (2) SCALE 414]. It is equally settled in law that this Court in exercise of power under Section 100 of the CPC cannot reappreciate the evidence. [See, Thimmaiah and Others v. Mingamma and Another MANU/SC/0532/2000 : 2000 KHC 1351 : 2000 (7) SCC 409 : AIR 2000 SC 3529 (2)]. Where on appreciation of evidence, even two views are possible, this Court, in exercise of power under Section 100 of the CPC would not interfere. [See, Kondiba Dagadu Kadam v. Savitri Bai Sopan Gujar MANU/SC/0278/1999 : 1999 KHC 1105: 1999 (3) SCC 722 : AIR 1999 SC 2213 & Veerayee Ammal v. Seeni Ammal MANU/SC/0667/2001 : 2002 KHC 1085: 2002 (1) SCC 134: AIR 2001 SC 2920 : JT 2001 (19) SC 145]. Going by Ext. A1, it is seen that the entire sale consideration for the purchase of plaint schedule property was given by one Mr. Simon Abraham for and on behalf of Yohannan. Though Shri. Simon Abraham was examined to prove otherwise, the Courts below concurrently disbelieved his evidence as untrustworthy and incredible. If the claim of the defendant is true and genuine, why his name didn’t find a place in Ext. A1 sale deed. Similarly, the plaint schedule property was mutated in the name of Yohannan, even according to Exts. B4 and B5 tax receipts produced by the defendants. What prevented the 1st defendant from mutating the property in his name? After examining Exts. X1 to X4, the Courts below concurrently found that the building tax was being paid in the name of Yohannan from 1977 to 1989. Even though the defendants had paid building tax by Exts. B2 and B3, PW 3, the Secretary of the Panchayat has given evidence to the effect that there is no change of ownership in the assessment register after 1989 corresponding to Exts. B2 and B3. There, the case of the plaintiff that in his absence in India the 1st defendant manipulated the records in his name cannot be brushed aside. Though DWs. 2 and 3 were examined to prove the claim of adverse possession, the Courts below concurrently disbelieved them also. Thus, the defendants miserably failed to prove the right of adverse possession set up by them. There is no illegality or impropriety in the impugned judgment under challenge. I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived at.

In the result, this Regular Second Appeal is dismissed.

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