Kerala High Court
Domi Joseph vs Alice Thomas (Died) on 20 February, 2026
R.S.A. Nos.106 & 117 of 2026 1 2026:KER:16932
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 20TH DAY OF FEBRUARY 2026 / 1ST PHALGUNA, 1947
RSA NO. 106 OF 2026
AGAINST THE JUDGMENT DATED 04.11.2025 IN AS NO.70 OF 2016 OF
SUB COURT, CHAVAKKAD ARISING OUT OF THE JUDGMENT DATED 05.01.2016 IN
OS NO.957 OF 2014 OF MUNSIFF COURT, WADAKKANCHERRY
APPELLANT(S)/APPELLANT/PLAINTIFF:
DOMI JOSEPH,
AGED 50 YEARS
KARIYAKUNNIL HOUSE, MATTOM P.O.,
THALAPPILLY TALUK, THRISSUR, PIN - 680602
BY ADVS.
SHRI.SOURADH C. VALSON
SHRI.C.C.ABRAHAM
SRI.ALEX ABRAHAM
SHRI.YAAMIN A. MOHAMED
RESPONDENT(S)/RESPONDENTS/DEFENDANTS 1 TO 6 AND 8-13 :
1 ALICE THOMAS (DIED),
AGED 89 YEARS
W/O. LATE THOMAS MASTER, KAKKASSERY HOUSE,
MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
2 K.F. IPPUNNI,AGED 66 YEARS
S/O. LATE FRANCIS, KAKKASSERY HOUSE,
MARKET ROAD, MATTOM P.O.,
THALAPPILLY TALUK, THRISSUR, PIN - 680602
3 K.F. DAVIS,AGED 60 YEARS
S/O. LATE FRANCIS, KAKKASSERY HOUSE,
MARKET ROAD, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
4 K.M. SEBASTIAN,AGED 55 YEARS
S/O. LATE KOCHUMATHU, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O.,
THALAPPILLY TALUK, THRISSUR, PIN - 680602
R.S.A. Nos.106 & 117 of 2026 2 2026:KER:16932
5 JOSE MATHEW, AGED 53 YEARS
S/O. LATE KOCHUMATHU, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
6 WILSON MATHEW K.
AGED 53 YEARS, S/O. LATE KOCHUMATHU,
KAKKASSERY HOUSE, OLLUR P.O.,
THRISSUR TALUK., PIN - 680306
7 BINOY K.J., AGED 50 YEARS
S/O. LATE JOSE, KAKKASSERY HOUSE,
MARKET ROAD, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
8 BIJU K.J.,AGED 55 YEARS
S/O. LATE KOCHUMATHU, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
9 SIMI SAJU,AGED 39 YEARS
W/O. LATE SAJU MATHEW, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
10 JOHN K. SAJU,AGED 11 YEARS
MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN,
9TH RESPONDENT SIMI SAJU., PIN - 680602
11 GEORGE K. SAJU,AGED 7 YEARS
MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN,
9TH RESPONDENT SIMI SAJU., PIN - 680602
12 JEROME K. SAJU,
AGED 3 YEARS
MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN,
9TH RESPONDENT SIMI SAJU., PIN - 680602
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
20.02.2026, ALONG WITH R.S.A.NO.117 OF 2026, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
R.S.A. Nos.106 & 117 of 2026 3 2026:KER:16932
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 20TH DAY OF FEBRUARY 2026 / 1ST PHALGUNA, 1947
RSA NO. 117 OF 2026
AGAINST THE JUDGMENT AND DECREE 04.11.2025 IN AS NO.71 OF 2016
OF SUB COURT, CHAVAKKAD ARISING OUT OF THE JUDGMENT DATED DECREE DATED
05.01.2016 IN OS NO.957 OF 2014 OF MUNSIFF COURT, WADAKKANCHERRY
APPELLANT(S)/APPELLANT/PLAINTIFF :
DOMI JOSEPH
AGED 50 YEARS
KARIYAKUNNIL HOUSE, MATTOM P.O.,
THALAPPILLY TALUK, THRISSUR, PIN - 680602
BY ADVS.
SHRI.SOURADH C. VALSON
SHRI.C.C.ABRAHAM
SRI.ALEX ABRAHAM
SHRI.YAAMIN A. MOHAMED
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1 ALICE THOMAS (DIED),
AGED 89 YEARS
W/O. LATE THOMAS MASTER, KAKKASSERY HOUSE,
MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
2 K.F. IPPUNNI, AGED 66 YEARS
S/O. LATE FRANCIS, KAKKASSERY HOUSE,
MARKET ROAD, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
3 K.F. DAVIS, AGED 60 YEARS
S/O. LATE FRANCIS, KAKKASSERY HOUSE,
MARKET ROAD, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
R.S.A. Nos.106 & 117 of 2026 4 2026:KER:16932
4 K.M. SEBASTIAN, AGED 55 YEARS
S/O. LATE KOCHUMATHU, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
5 JOSE MATHEW,AGED 53 YEARS
S/O. LATE KOCHUMATHU, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O.,
THALAPPILLY TALUK, THRISSUR, PIN - 680602
6 WILSON MATHEW K.
AGED 53 YEARS
S/O. LATE KOCHUMATHU, KAKKASSERY HOUSE,
OLLUR P.O., THRISSUR TALUK, PIN - 680306
7 BINOY K.J., AGED 50 YEARS
S/O. LATE JOSE, KAKKASSERY HOUSE,
MARKET ROAD, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
8 BIJU K.J.,AGED 55 YEARS
S/O. LATE KOCHUMATHU, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
9 SIMI SAJU, AGED 39 YEARS
W/O. LATE SAJU MATHEW, KAKKASSERY HOUSE,
NAMBIZHIKADU, MATTOM P.O., THALAPPILLY TALUK,
THRISSUR, PIN - 680602
10 JOHN K. SAJU, AGED 11 YEARS
MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN,
9TH RESPONDENT SIMI SAJU., PIN - 680602
11 GEORGE K. SAJU, AGED 7 YEARS
MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN,
9TH RESPONDENT SIMI SAJU., PIN - 680602
12 JEROME K. SAJU, AGED 3 YEARS
MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN,
9TH RESPONDENT SIMI SAJU., PIN - 680602
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
20.02.2026 ALONG WITH R.S.A. NO.106 OF 2026, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
R.S.A. Nos.106 & 117 of 2026 5 2026:KER:16932
EASWARAN S., J.
-----------------------------
R.S.A. Nos.106 & 117 of 2026
-------------------------------------
Dated this the 20th day of February, 2026
JUDGMENT
These appeals arise out of the concurrent findings in a suit for injunction and in the counterclaim for mandatory eviction.
2. The appellant in the suit contended that he is a licensee under one Thomas Master, who had given the license to his mother to stay in the plaint B schedule house located in the plaint A schedule property in the year 1977, and at that time he was a minor. Later, on becoming a major, he, along with his mother, was staying there and was also permitted to put up permanent structures therein by the 1st defendant and her husband, Thomas Master. Thus, the license had become irrevocable in view of the provisions of Section 60(b) of the Indian Easements Act, 1882. The defendants, on the other hand, contended that the occupation was always permissive and that the plaintiff was given on marriage on 24.5.1992, and subsequently in 1998, the mother of the plaintiff returned back to Idukki and died there. The plaintiff and his family continued to reside in the property since the 1st defendant requested them to stay along with her due to her old age. Later, at the instance of defendants 2 to 4, attempts were R.S.A. Nos.106 & 117 of 2026 6 2026:KER:16932 made to evict the plaintiff from the plaint schedule property. Hence the suit. In the suit, the defendants raised a counterclaim stating that the plaintiff's occupation was always permissive and that certain acts had been committed to the detriment of the defendants. Accordingly, they sought for a mandatory injunction directing the plaintiff to vacate the premises and put them in occupation. On behalf of the plaintiffs, Exts.A1 to A60 documents were produced, and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 certified copy of the Will was produced, and DW1 to DW3 were examined. Ext.X1 is the certified copy of the Will produced by the SRO, Kunnamkulam and Ext.X2 is the certified copy of the relevant page of the register of thumb impression produced by the SRO, Kunnamkulam. Exts.C1 and C2 are the reports of the Advocate Commissioner who was examined as CW1. The trial court, on consideration of the oral and documentary evidence, came to the conclusion that the plaintiff was never under any permission from the original licensor to occupy the premises and that even if he had occupied the same, it could only be construed as a permissive one. The plea of the plaintiff that he had put up structures in plaint B schedule was turned down in as much as he could not produce any evidence to substantiate the claim that he had obtained permission from the licensor to effect those R.S.A. Nos.106 & 117 of 2026 7 2026:KER:16932 constructions. Accordingly, the suit was dismissed, and the counterclaim was decreed by passing a mandatory injunction directing the plaintiff to vacate the premises. Aggrieved, the plaintiff preferred A.S. Nos.70 of 2016 and 71 of 2016 before the Sub Court, Chavakkad and both the appeals were dismissed 4.11.2025. Hence, the present second appeals.
3. Heard Sri. Souradh C. Valson, the learned counsel appearing for the appellant and Sri. M.M. Madhu, the learned counsel appearing for the 6th respondent on caveat.
4. The learned counsel for the appellant raised the following submissions.
a. The eviction of the plaintiff/appellant is not sought by the original licensor, but by the siblings of the original licensor, which is impermissible.
b. The court below ought to have framed an issue regarding the title of the counterclaim plaintiffs/defendants in the suit. c. The original Will was not produced before the court below, and therefore, the mandate of Section 65 of the Indian Evidence Act, 1872 has not been satisfied.
d. It is further pointed out that after the marriage of the plaintiff, the original licensee, that is, his mother, went away R.S.A. Nos.106 & 117 of 2026 8 2026:KER:16932 from the property, but she was called back by the 1st defendant to stay along with her to take care of her. Therefore, the said act would lead to a presumption that the mother had continued permission to occupy the premises and thereby give rise to an irrevocable license. It is further pointed out that the wife of the 1st defendant, who had a life estate over the property, was not examined, and therefore, the non-examination of the 1st defendant is detrimental to the cause.
5. Per contra, Sri. N.M. Madhu, the learned counsel appearing for the 6th respondent on caveat, supported the findings of the courts below and contended that the question of title was never an issue before the court below. Rather, the question was whether the occupation of the plaintiff in the plaint schedule was permissive. According to the learned counsel, at the time of putting the mother of the plaintiff in possession of the property, the plaintiff was only a minor, and there cannot be any presumption that the license granted to the mother enures to the benefit of her son. Since the conditions required to claim an irrevocable license under Section 60(b) of the Indian Easements Act are not made out, the R.S.A. Nos.106 & 117 of 2026 9 2026:KER:16932 courts below have correctly appreciated the fact and law on the point and dismissed the suit and decreed the counterclaim.
6. I have considered the rival submissions raised across the Bar.
7. The question to be considered is whether a case of irrevocable license is made out or not. This, in turn, will decide whether this Court is required to answer any substantial questions of law as sought to be framed in the memorandum of appeal. It is indisputable that the plaintiff at the time of entrustment of the property in the year 1977 was a minor, and admittedly, the mother is the person who was permitted to reside in the property. There is no written agreement between the parties allowing the mother to occupy the property, and therefore, it is clear that only a case of oral license is pleaded.
8. A permission to occupy the building or a property cannot qualify itself as a case of oral license unless it is supported by any evidence. The plaintiff has not been able to establish that on attainment of majority, the license given in favour of the mother automatically vests with him. It has also come out in evidence that after the marriage of the plaintiff in the year 1992, his mother had left the plaint schedule building. It is also an admitted case that the mother of the plaintiff was called back by the 1st defendant to take care of her during her old age.
R.S.A. Nos.106 & 117 of 2026 10 2026:KER:16932
9. What is now projected before this Court is that the act of the wife of the original licensor calling back the mother of the plaintiff to reside along with her infer an irrevocable license. This Court is unable to subscribe to the said argument, especially since the act of the 1st defendant can only be at best qualify as one requesting the plaintiff's mother to assume the position of a caretaker of the 1st defendant. This is exactly what the courts below have found out on the basis of the appreciation of the evidence.
In the particular facts and circumstances, this Court is not persuaded to take a different view from that taken by the courts below. Accordingly, finding that no substantial questions of law arise for consideration in these appeals, the appeals are dismissed. At this point of time, the learned counsel for the appellant sought indulgence of this Court to vacate the plaint schedule building by granting him a reasonable time. The request is found to be reasonable and accordingly, six months' time from today is granted to vacate the plaint schedule property on the terms as fixed by the courts below.
Sd/-
EASWARAN S. JUDGE NS