Kerala High Court
V.C. Joseph vs Fr.Marian on 3 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
RSA NO. 339 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 29.02.2024 IN AS NO.8 OF
2023 OF SUBORDINATE JUDGE'S COURT, CHERTHALA ARISING OUT OF THE
JUDGMENT AND DECREE DATED 23.12.2022 IN OS NO.660 OF 2016 OF
MUNSIFF'S COURT,CHERTHALA
APPELLANT/APPELLANT/DEFENDANT:
V.C. JOSEPH
AGED 77 YEARS
S/O. CHANDY, VALAKADAVIL HOUSE, RESIDING AT
VALIYAPARAMBIL HOUSE, EZHUPUNNA VILLAGE,
ERAMALLOOR P.O., CHERTHALA TALUK,
ALAPPUZHA, PIN - 688537
BY ADVS.
JOBY CYRIAC
KURIAN K JOSE
DEVIKA T.R.
RESPONDENT/RESPONDENT/PLAINTIFF:
FR.MARIAN
OFM CAP, S/O. CHANDY, VALAKADAVIL HOUSE, RESIDING AT
VALIYAPARAMBIL HOUSE, EZHUPUNNA VILLAGE,
ERAMALLOOR P.O., PRESENTLY AT ST.JOSEPH'S ASRAM.
ADHIKARIVALAPPU, FORT KOCHI, PIN - 682001
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
03.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
R.S.A.No.339 of 2024
C.S.SUDHA, J.
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R.S.A.No.339 of 2024
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Dated this the 3rd day of July 2024
JUDGMENT
This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the defendant/appellant is against the judgment and decree dated 29/02/2024 in A.S.No.8/2023 on the file of the Subordinate Judges' Court, Cherthala, which appeal in turn is against the judgment and decree dated 23/12/2022 in O.S.No.660/2016 on the file of the Munsiff's Court, Cherthala. The parties and the documents will be referred to as described in the suit.
2. The suit was one for mandatory and prohibitory injunction. According to the plaintiff, he purchased 4.60 ares of property comprised in survey no.218/23 A, Ezhupunna village, Eramalloor panchayat as per Ext.A1 sale deed dated 11/06/2003. 3 R.S.A.No.339 of 2024 After purchase of the property, the plainitff constructed a double storied building bearing no.EP IX/561B. The plaint schedule property is the ground floor of the said building which belongs to the plaintiff. The first floor of the plaint schedule building has been let out by the plaintiff and the same is in the occupation and possession of the tenant. The defendant who is the elder brother of the plaintiff along with his family were residing away from the property purchased by the plaintiff. As requested by the defendant, the plaintiff permitted the former to reside in the schedule building temporarily as the defendant's house needed reconstruction. The permission granted to the defendant was only oral in the light of the relationship between the parties. Now the defendant is refusing to vacate the building and hence the suit.
3. The defendant filed written statement denying the plaint allegations. According to the defendant, the plaintiff, a priest, who has attained civil death, cannot acquire any property in his name. It was with the defendant's money, the property had 4 R.S.A.No.339 of 2024 been purchased. The plaintiff is only a name lender. As the construction expenses of the residential building in the property was also expended by the defendant, the plaintiff has no right in the property.
4. Necessary issues were framed by the trial court. The parties went to trial on the basis of the aforesaid pleadings. PW1 was examined and Exts.A1 and A7 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B9 were marked on the side of the defendant. The report and plan of the advocate commissioner have been marked as Exts.C1 and C1(a). The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, decreed the suit. Aggrieved, the defendant filed A.S.No.8/2023. The first appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. Hence, the defendant has come up in second appeal.
5. Heard the learned counsel for the defendant/appellant. 5 R.S.A.No.339 of 2024
6. It is submitted by the learned counsel appearing for the defendant/appellant that both the courts grossly erred in appreciating the evidence on record as well as the law on the point. As the findings are erroneous, the same are liable to be reversed.
7. Ext.A1 dated 11/06/2003 is admittedly the title deed on the basis of which the plaint schedule property, was purchased in the name of the plaintiff. According to the defendant, the plaintiff is only a name lender and that the entire money for the purchase of the property as well as the construction of the residential building was expended by him and hence the plaintiff has no right or title over the property. The said contention was rejected by the trial court in the light of Section 4(2) of the Prohibition of Benami Property Transactions Act, 1988 (the Benami Act).
8. The defendant also took up a contention that the plaintiff is a priest and hence had attained civil death. In such circumstances, the plaintiff cannot acquire or hold property in his 6 R.S.A.No.339 of 2024 name and that he had also no resources or funds to buy a property or constuct a building therein. The trial court relying on the dictum in Msgr.Xavier Chullickal v. Raphael, 2017(2) KLT 1072 rejected his contention. In Xavier Chullickal (Supra) this Court held that there has to be a specific plea and evidence let in regarding the alleged custom amongst the diocesan priests to desist from holding property on entering into the Holy Order. To hold that one would suffer a 'civil death' and would be deprived of his property on entering into the Holy Order would be a naked infringement of Article 300 A of the Constitution of India. It is the volition of a Hindu ascetic or a Christian priest to relinquish his right over his personal property in favour of a Mutt or Monastery in a manner known to law. However, there cannot be any automatic deprivation of property merely on the ground that the person entered into a religious Holy Order and renounced his worldly pleasures. Relying on this dictum, the trial court held that the plaintiff was certainly competent to buy and hold property in 7 R.S.A.No.339 of 2024 his name.
9. Yet another contention that was taken up by the defendant/appellant is that there is no evidence of the oral licence as per which the defendant was put in possession of the property. According to the defendant, since he is admittedly in possession of the property, the plaintiff ought to have sought for recovery of possession and hence a mere prayer for mandatory injunction is not sufficient. However, both the courts did not appreciate this aspect and wrongly decreed the suit.
9.1. It is true that there is no evidence of any oral licence, as per which the defendant was let in to the property. However, as noticed earlier, the property stands in the name of the plaintiff as per Ext.A1 sale deed. The case of the defendant that the plaintiff is a mere name lender, was rejected based on Section 4(2) of the Benami Act. The defendant apart from claiming that he was the person who had raised the funds for purchasing the property and constructing the building, there was no evidence to substantiate 8 R.S.A.No.339 of 2024 the same. As the property and the building stand in the name of the plaintiff and when the defendant was unable to show any other right in the property, his occupation of the building can only be termed to be permissive. In such circumstances, when the permission is withdrawn by the owner, the defendant is liable to vacate the property. The trial court relying on the dictum in Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857, rejected the contention of the defendant that a mere suit for mandatory injunction is not sufficient. In Sant Lal Jain (Supra), a suit for mandatory injunction with a prayer to direct the licencee to vacate the property on the termination of the licence, it was held that the suit in effect is one for possession though couched in the form of a suit for mandatory injunction as what could be given to the plaintiff in case he succeeds is possession of the property to which he is found entitled to. Therefore it was held that the licensor cannot be denied the relief merely because he had couched the plaint in the form of a suit for mandatory injunction. I do not find 9 R.S.A.No.339 of 2024 any infirmity or perversity in the appreciation of evidence or findings of the trial court or the first appellate court calling for an interference by this Court. As no substantial questions of law arise, the appeal is liable to be dismissed in limine and hence I do so.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/