Sunny Varghese vs P.P. George and Others

Thomas P. Joseph, J.—These appeals arise from the common judgment and decree of learned Additional District Judge, Kottayam in A.S. No. 310 of 2008 and 311 of 2008 confirming the common judgment and decree of learned Principal Sub Judge, Kottayam in O.S. Nos. 57 of 2007 and 41 of 2005. The trial court granted a decree in favour of 1st respondent and the original 2nd plaintiff (she died pending first appeal and her legal representatives were impleaded) in O.S. No. 57 of 2007. O.S. No. 41 of 2005 filed by the appellant ended in a dismissal. First appellate court confirmed judgment and decree of trial court. Parties are referred as plaintiffs and defendant as in O.S. No. 57 of 2007. O.S. No. 57 of 2007 was originally filed in the court of learned Munsiff, Kottayam as O.S. No. 153 of 2005 and on account of pendency of O.S. No. 41 of 2005 filed by the defendant in the Principal Sub Court, Kottayam, O.S. No. 153 of 2005 was transferred to the Principal Sub Court as per order of learned District Judge, Kottayam, renumbered as O.S. No. 57 of 2007 and tried along with O.S. No. 41 of 2005.

Item No. 1 in O.S. No. 57 of 2007 belonged to the original plaintiff while item No. 2 therein is the building situated thereon. The husband of 2nd plaintiff died on 11.06.2003. 1st plaintiff is the brother of the 2nd plaintiff. According to the plaintiffs, 2nd plaintiff had allowed the defendant to reside in item No. 2 and while so, there was difference of opinion between the 2nd plaintiff and defendant which even led to the registration of a criminal case. Thereon, 2nd plaintiff shifted her residence to the house of the 1st plaintiff. She executed Ext.A1, assignment deed No. 205 of 2004 dated 01.11.2004 in favour of the 1st plaintiff concerning the suit properties in O.S. No. 57 of 2007. While so, it is alleged in the plaint in O.S. No. 57 of 2007 that on 01.10.2004, 2nd plaintiff wanted the defendant to vacate the building in the suit property (item No. 1 in O.S. No. 57 of 2007). That was followed by the2nd plaintiff issuing Ext.A1, notice dated 10.02.2005 demanding the defendant to vacate the suit property. Since defendant refused, plaintiffs filed O.S. No. 153 of 2005 originally in the court of learned Munsiff, Kottayam which was later transferred to the court of learned Principal Sub Judge, Kottayam and renumbered as O.S. No. 57 of 2007.

Defendant did not sit quite. He moved swiftly sensing the moves of the plaintiffs and filed O.S. No. 41 of 2005 in the Principal Sub Court, Kottayam (first on point of time) and prayed for a declaration of his possession of the suit property and a decree for prohibitory injunction against being evicted from the suit property including the building. That suit was resisted by the plaintiffs (in O.S. No. 57 of 2007) on the grounds urged in the plaint in O.S. No. 57 of 2007. After evidence the trial court found that defendant was only a licensee in the building in the suit property which was cancelled and hence plaintiffs in O.S. No. 57 of 2007 are entitled to seek mandatory injunction to direct him to vacate the building in the suit property. O.S. No. 57 of 2007 was decreed and O.S. No. 41 of 2005 was dismissed. That common judgment and decree were confirmed by the first appellate court in the appeals first above stated. Hence these Second Appeals urging the substantial questions of law raised in the memorandum of appeals.

Learned counsel for appellant/defendant contends that averments in the plaint in O.S. No. 57 of 2007 as also the evidence revealed that defendant is in absolute possession and enjoyment of the suit property in which case question of plaintiffs in O.S. No. 57 of 2007 seeking a decree for mandatory injunction as if defendant is the licensee of the building does not arise. It is also the contention of learned counsel that the 2nd plaintiff had executed Ext.B1, Will No. 70 of 2003 bequeathing the property in favour of the defendant and that at the time Ext.A1, assignment deed was executed on 01.11.2004 the 2nd plaintiff was not having sound disposing state of mind to execute the said document. It is also contended that evidence would reveal that 1st plaintiff got the said document executed under undue influence, coercion and threat. In the circumstances, trial and first appellate courts were not correct in granting reliefs to the plaintiffs based on Ext.A1, assignment deed dated 01.11.2004.

Learned counsel who filed caveat on behalf of the plaintiffs contended that findings entered by the courts below on facts and evidence do not involve any substantial question of law requiring admission of these appeals.

It is not disputed that the suit property belonged to the 2nd plaintiff in O.S. No. 57 of 2007. According to the plaintiffs, the 2nd plaintiff on 01.11.2004 executed Ext.A1, assignment deed in favour of 1st plaintiff concerning the suit property. Now the contention is raised by the defendant that the said document was executed at a time when the 2nd plaintiff was not having a sound disposing state of mind and the said document is vitiated by undue influence and coercion. It is not very much in dispute that the defendant was occupying item No. 2, building in item No. 1, property in O.S. No. 57 of 2007. There is no case for the defendant that he occupied the building as of right since even Ext.B1, Will could take effect only after the death of the 2nd plaintiff and if she continued to be the owner, then 2nd plaintiff died only when the appeals were pending in the first appellate court. Hence occupation of defendant in the building in the suit property was under the 2nd plaintiff, owner of the property. Contention of the defendant that 2nd plaintiff allowed him to stay in the suit property is to be understood in the above background.

Coming to the authenticity of Ext.A1, contention is that 2nd plaintiff was not having sound disposing state of mind. But it is relevant to note that Ext.A1 was executed on 01.11.2004 while according to the defendant, 2nd plaintiff executed Ext.B1, Will No. 70 of 2003 bequeathing the suit property in his favour on 17.10.2003. It is difficult to think that 2nd plaintiff who was having sound disposing state of mind to execute Ext.B1 on 17.10.2003 suddenly lost that sound disposing mind while executing Ext.A1 on 01.11.2004. A further fact to be noted is that 2nd plaintiff had filed C.M.P. No. 6263 of 2004 in the court of learned Chief Judicial Magistrate, Kottayam against the defendant for certain offences and based on that complaint, the local police registered a crime against the defendant. The Police questioned 2nd plaintiff and submitted a final report against the defendant which was taken on file by the learned Judicial First Class Magistrate-I, Kottayam as C.C. No. 824 of 2005. Ext.B4 is the copy of judgment in that case whereby the defendant was acquitted of the charges against him. May be the allegations made by the 2nd plaintiff were either false or incorrect or were not proved and the defendant got an acquittal. But the point relevant for consideration is that Ext. B4, judgment shows that the 2nd plaintiff who allegedly was not having sound disposing state of mind (according to the defendant) had preferred a complaint before court in the year, 2004, was interrogated by the police in the course of investigation and gave evidence in the court of learned Judicial First Class Magistrate-I, Kottayam in C.C. No. 824 of 2005. These circumstances are eloquent indication, and also in the absence of better evidence from the defendant that the plea of defendant that 2nd plaintiff had no sound disposing state of mind when Ext.A1 was executed, is untrue.

"undue influence" is the unfair persuation of a party who is under the domination of the person exercising persuasion, or who, by virtue of the relation between them is justified in assuming that the person will not act in a manner inconsistent with his welfare (see - Gopalakrishnan Vs. Srinivasan, ). It is an admitted fact that at the time 2nd plaintiff and the defendant were staying together in the building (item No. 2) in the suit property, she had to withdraw from the company of the defendant and start residence with the 1st plaintiff, according to the plaintiffs, because the defendant ill-treated her. It is at that time Ext.A1, assignment deed was executed by the 2nd plaintiff in favour of 1st plaintiff. That by itself is no ground to say that the said document was executed under undue influence or coercion. Trial court held that as required under Order VI, Rule 4 of the CPC (for short, "the Code") the details of undue influence and coercion are not given in the plaint. Trial and first appellate courts found that there is no sufficient evidence to prove the said allegations as well so that Ext.A1 could be said to be vitiated. I must also notice that 2nd plaintiff volunteered herself to be a party to O.S. No. 57 of 2007 (originally filed as O.S. No. 153 of 2005) and thereby exhibited that she supported and stood by Ext.A1, assignment deed. There is also the evidence of PWs2 and 3, attestors in Ext.A1 about the due execution of Ext.A1 which courts below accepted.

DWs 2 and 3 who are closely related to the parties had given contra evidence in favour of defendant. But in the light of the circumstances stated above, that version of DWs 2 and 3 were not accepted by the trial and first appellate courts and, for justifiable reasons.

Now the question is whether on the allegations made in the plaint in O.S. No. 57 of 2007 (O.S. No. 153 of 2005) plaintiffs could maintain a suit for mandatory injunction as if the defendant is a licensee and his license has been terminated. In the plaint it is averred that 2nd plaintiff terminated the license in favour of defendant on 01.10.2004 and followed by notice dated 10.02.2005. Under Sec.63 of the Easements Act (for short, "the Act") when a license is terminated, the only right the licensee has, is to get reasonable time to vacate. Before the licensee settles down to ''possession'' against the licensor, a suit for mandatory injunction would lie. The only thing is that the suit for mandatory injunction has to be filed within a reasonable time after revocation of license. If authority is required, it is available in George v.John (1984 KLT 179). Therefore before the licensee whose license is terminated asserts possession adverse to the interest of the licensee it is open to the licensor to sue for mandatory injunction.

No doubt, defendant filed O.S. No. 41 of 2005 claiming that he is in absolute possession of the entire property including the building. But it was not under any title or even colour of title since the only document defendant could rely upon is Ext.B1, Will No. 70 of 2003 and that could take effect only after the death of the 2nd plaintiff (which happened pending the appeals in the first appellate court) and hence occupation of defendant in the plaint schedule property could only be under the 2nd plaintiff as permitted by her. It is true that in paragraph 6 of O.S. No. 57 of 2007 (O.S. No. 153 of 2005) it is stated that after obtaining the order of injunction in O.S. No. 41 of 2005, defendant started taking yield from item No. 1 in O.S. No. 57 of 2007. Assuming so, that does not indicate that defendant is in absolute or settled possession of the property. It only means that there was an occasional interference by the defendant with the possession of 2nd plaintiff.

What is ''possession under law''? It is explained in Annies v. Rapai(1986 KLT 1204). It is held that acquisition of legal possession normally involves on the occurrence of some event whereby the subject matter falls under the control of the possessor. There must be an intention on the part of the possessor to exercise control over the subject matter and to exclude others from possession. Possession is not necessarily the same thing as occupation or actual user. Possession means the physical possibility of a person dealing with property as he likes and it also implies some actual power over the object possessed and some amount of will to avail oneself of that power.

On 1.10.2004, the 2nd plaintiff terminated the license followed by notice dated 10.02.2005. Soon after termination of license, 2nd plaintiff joining hands with 1st plaintiff (in whose favour Ext.A1, assignment deed was executed) sought mandatory injunction in the year, 2005. I am unable to accept the contention that in the meantime, defendant got ''possession'' of the suit property adverse to the interest of plaintiffs so that plaintiffs were required to file a suit for recovery of possession on the strength of title. In that view of the matter plaintiffs were legally and factually correct in seeking mandatory injunction to evict the defendant. On hearing learned counsel and going through the judgments under challenge I do not find any substantial question of law involved in these Second Appeals and they are only to be dismissed.

It is submitted by the learned counsel for appellant/defendant that defendant is staying with family in the building in the suit property. Learned counsel alternatively has requested six months time to vacate. I have heard learned counsel for respondents also in that regard. Having regard to the circumstances stated by the learned counsel, I am inclined to grant three months time from this day to the appellant/defendant to vacate the building in the suit property but, subject to conditions.

Resultantly the Second Appeals fail and are accordingly dismissed.

Appellant/defendant is granted three months'' time to vacate the building in the suit property subject to the following terms and conditions:

i. Appellant/defendant shall not trespass into item No. 1 of the plaint schedule in O.S. No. 57 of 2007.

ii. Appellant/defendant shall not create documents or encumber the property or put third parties into possession of the suit property or building during the said period.

iii. Appellant shall, by the expiry of the said period of three months vacate the building in the suit property without putting forth any claim or objection on any count whatsoever.

iv. Appellant shall file an affidavit in the executing court before 22.05.2012 undertaking to comply with the conditions above stated.

v. In case any of the conditions above stated are violated it will be open to the respondents to proceed with execution of the decree in their favour.

All pending interlocutory applications will stand dismissed.