Kerala High Court
R.Mohan vs Sarat Chandran Nair on 22 February, 2006
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
SATURDAY,THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938
RSA.No. 897 of 2006 (F )
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AGAINST THE JUDGMENT AND DECREE IN AS NO. 170/1999 of III ADDITIONAL DISTRICT
COURT,THIRUVANANTHAPURAM DATED 22-02-2006
AGAINST THE JUDGMENT AND DECREE IN OS NO. 107/1997 of II ADDITIONAL
MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 20-03-1999
APPELLANT/APPELLANT/PLAINTIFF:
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R.MOHAN, AGED 48 YEARS,
NOW WORKING IN SHARJAH, U.A.E., REPRESENTED BY HIS WIFE AND
POWER OF ATTORNEY HOLDER, SOBHA MOHAN, RESIDING AT
"NUTTMUGS", PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM.
BY ADVS.SRI.M.RAMASWAMY PILLAI
SRI.V.BAHULEYAN
SRI.P.M.JOSEPH
RESPONDENT/RESPONDENT/DEFENDANT:
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SARAT CHANDRAN NAIR, S/O.KRISHNA PILLAI
AGED ABOUT 42, RESIDING AT T.C.30/1617(1), EUFIL ENGINEERING
WORKS, PALLIMUKKU, PETTAH P.O.,THIRUVANANTHAPURAM.
BY ADVS. M/S.. SRI.K.P.SUJESHKUMAR
SRI.EUGINE HERBERT
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
06-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
"C.R."
A.HARIPRASAD, J.
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R.S.A. No.897 of 2006
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Dated this the 6th day of August, 2016
JUDGMENT
This second appeal is at the instance of the plaintiff in O.S.No.107 of 1999 before the Court of Additional Munsiff, Thiruvananthapuram. Suit is one for recovery of plaint schedule property and for other reliefs. The trial court dismissed the suit. Appellant challenged the matter in appeal before the lower appellate court. Learned Additional District Judge concurred with the finding of the trial court and dismissed the appeal.
2. Heard the learned counsel for the appellant.
3. The substantial question of law arising in this appeal is whether the courts below are justified in holding that the respondent is entitled to possess the licensed premises by invoking Section 60(5) of the Easements Act, 1882?
4. Facts, in brief, relevant are as follows: Appellant is the owner of plaint A schedule property by virtue of Ext.A2 settlement deed and Ext.A3 partition deed. The property originally belonged to his father RSA No.897/2006 2 Ramakrishnan. Ramakrishnan had obtained a licence for constructing a shed in the plaint A schedule property, from Thiruvananthapuram Corporation. As requested by the respondent, appellant's father Ramakrishnan allowed the former to construct a shed in the property as per the plan and licence issued from the Corporation.
5. It was mutually agreed between Ramakrishnan and the respondent that the latter would construct a shed in accordance with the plan and licence issued in favour of Ramakrishnan for conducting a workshop and the respondent should pay a monthly rent of `100/-. Thereafter the respondent constructed a shed and started an engineering workshop in the premises. Later the property was settled in the name of the appellant. Then the respondent attorned to the appellant. The appellant issued Ext.B2 document in favour of the respondent permitting him to continue occupation in the premises. As per Ext.B2, the term fixed was 15 years from 08.08.1986. Monthly ground rent fixed was `100/- initially, which is subsequently enhanced to `600/-. The respondent committed default in paying the ground rent. Hence the appellant initiated the action to evict him from the premises.
6. The respondent filed a written statement contending that the appellant has no authority to evict him. He invested huge amounts for construction of the shed and he is running an engineering workshop RSA No.897/2006 3 therein. He is entitled to the benefit of Section 106 of the Kerala Land Reforms Act, 1963 (in short, "KLR Act"). Therefore, the claim of the appellant is not legally allowable. An unspecific plea regarding an irrevocable licence is seen made in the written statement.
7. Courts below rejected the plea raised by the respondent that he is a tenant entitled to get protection under Section 106 of the KLR Act. In order to get the benefit of Section 106 of the KLR Act, it must be pleaded and established that he constructed a building for commercial or industrial purpose before 20.05.1967. Going by the pleadings and evidence adduced before the courts below, it is clear that the appellant's father allowed the respondent to construct the shed only in the year 1984. Therefore, the mandatory prescription under Section 106 of the KLR Act has not been satisfied. The courts below therefore rightly repelled this contention.
8. What is remaining to be considered is the plea of non- evictability based on Section 60 of the Indian Easements Act, 1882 (in short, "Act"). The Section reads as follows:
"License when revocable.-A licence may be revoked by the grantor, unless-
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the licence, has executed a work of a permanent character RSA No.897/2006 4 and incurred expenses in the execution."
It is settled law that a licence is revocable unless the case falls under Clause (a) or Clause (b) of Section 60 of the Act. Under Clause (a) if the licence is coupled with a transfer of property and such transfer is in force, the licence then would not be revocable. Under Clause (b), if the licensee, acting upon the licence, had executed a work of permanent character and incurred expenses in the execution, then too the licence will not be revocable. It is well settled that Clauses (a) and (b) in Section 60 of the Act are not exhaustive. Parties by an agreement can make a licence irrevocable even if it is not covered by Clause (a) or Clause (b) of Section 60 of the Act. Judicial pronouncements touching upon this subject will show that Section 60 of the Act is not exhaustive and it only shows two classes of cases in which a licence can be regarded as irrevocable. In M.J.DeSouza v. Children's Education Uplift Society (AIR 1959 Bombay 533) it has been held that apart from the Easements Act, there is a law of contract and if the parties enter into a contract and arrive at a solemn agreement to the effect that the licence shall be irrevocable or shall be limited to a particular duration, the licensor will be bound by his engagement and will not be entitled to terminate the licence or revoke the licence at his sweet will and pleasure.
9. In this case, there is no specific contention raised by the RSA No.897/2006 5 respondent that he is entitled to the protection of Section 60(a) of the Act. In otherwords, no contention was raised by the respondent in the written statement, nor any evidence was adduced to show that the permission granted to him by Ramakrishnan to construct a shed was coupled with a transfer of property and that such transfer is in force. Therefore, the first limb of the Section is inapplicable in this case. It appears from the judgment of the court below that Section 60(b) of the Act was considered and held in favour of the respondent. Canons of pleadings are clear that when a defendant has not raised a plea regarding the benefit of Section 60 of the Act, the same cannot be extended to him. There is no plea raised in the written statement that he had acted upon the licence to execute a work of a permanent character and incurred expenses in such execution. It is submitted by the learned counsel for the appellant that the engineering workshop is conducted in a makeshift shed. I have carefully gone through the averments in Ext.B2. It does not spell out any authorisation to the respondent to make a permanent structure. In the absence of such a stipulation in Ext.B2 and in the absence of evidence before the courts below that he had incurred expenses for construction of a shed for running a workshop, the courts below are not justified in holding that the respondent is entitled to get the benefit of Section 60(b) of the Act. Therefore, the contention of appellant that the lower courts erred is RSA No.897/2006 6 sustainable. Hence the substantial question of law is to be answered in favour of the appellant.
In the result, the appeal is allowed. Judgments and decrees passed by the courts below are set aside. The suit is decreed as follows. The respondent is directed by a mandatory injunction to demolish plaint B schedule shed and remove the same and give vacant possession of plaint A schedule property to the appellant within a period of three months from today. If the respondent fails to demolish and remove plaint B schedule shed and vacate plaint A schedule property, the appellant is allowed to demolish and remove the shed through court and recover the cost and expenses from the respondent. The appellant is allowed to recover the cost of the proceedings throughout from the respondent.
A. HARIPRASAD, JUDGE.
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