Veerappa konar and others vs Ayipillai and others

Krishnaswami Nayudu, J.—The plaintiffs are the appellants and their suit for recovery of vacant possession of about 5 cents of land was dismissed by the trial Court, which dismissal was confirmed in appeal by the Subordinate Judge of Sivaganga. The plaintiffs'' case was that the defendants came into possession of the suit site as licensees and were permitted by the first plaintiff''s grandfather to construct houses and reside therein and vacate and surrender the site whenever required. Since the defendants denied the title of the plaintiffs to the suit property, they brought the present suit for recovery of possession. The title to the suit property was based on two cadjan-leaf documents, Exs. A. 1 and A. 2, dated 30th April 1885 and 15th November 1913, respectively. We are now concerned with the property covered by Ex. A. 1 and not with that covered by Ex. A. 2, as both the Courts below have found that Ex. A. 2 is not a genuine document. Ex. A. I has been found to be genuine by the learned District Munsif, which finding was half-heartedly accepted by the learned Subordinate judge, who proceeded to examine the contentions of the parties an the basis that Ex. A. 1 was genuine. The result of the finding that Ex. A. 1 was genuine and was executed by the predecessors in interest of the defendants is that the plaintiffs have established title to the disputed property covered by Ex. A-1. Both the Courts found that the defendants and their predecessors-in-interest have been in exclusive possession and enjoyment of the property for over thirty years after the death of Pottachi, the second executant in Ex. A. 1 and that, therefore, they have established title by adverse possession.

It is now contended that though the defendants predecessors-in-title were described as licensees, Ex. A-1 executed by them is not strictly a document evidencing a license, and it is described only as an agreement. It is in the following terms :

As we, Veerabhadran, son of Kannappan of Thekkuthi, Periakaruppan, son of Mathalagan Periakaruppan, and Muthandi''s wife, Pottachi, have built a residential house in your site, that site shall not be sold to any one. Whenever the site is required by you, you the owner there of, shall take the site where we are living."

Both the Courts below accepted the case of the plaintiffs that the defendants and their predecessors-in interest were licensees and that after the death of Pottachi, as there was no renewal of the license in favour of the defendants or their predecessors-in-interest, the possession of the defendants and their predecessors-in-interest after the death of Pottachi could not be held permissive but adverse, and such possession having been established for over the statutory period, the plaintiff''s right to recover possession has become barred.

There can be no doubt that on the allegations in the plaint and on a prima fade reading of the document what was intended was an arrangement between the owners of the land and the three persons who apparently put up a house on the site, that they should continue to occupy it but must surrender whenever the site was required by the owner. If they are licensees, it is well-established that a license enjoyed in respect of a property is not annexed to it and is not a transferable or a heritable right. The license is determined on the transfer of the property affected by it [Vide Chinnan v. Ranjithammal (1)]. It was further observed in that case that a licence is a purely personal right between the grantor and the licensee and that the possession of the representatives of a licensee is in no way better than that of the representatives of a tenant on sufferance ,since both are mere trespassers and cannot be regarded as succeeding to any interest in the tenancy and that what is true of a tenant on sufferance is equally true of a licensee [Vide Vadapalli Narasimha v. Dronamraju Seetharamamurthi (2)]. Therefore, unless it is shown that the possession of the defendants and their predecessors-in-interest after the death of Pottachi is permissive, the plaintiffs cannot succeed.

To establish the permissive character of the defendants'' possession, it is not contended that Ex. A. 1 is a lease but that it is an agreement with an obligation attaching to the enjoyment of the property under S. 40 of the Transfer of Property Act. The obligation that is attached to the enjoyment of the property is an obligation on the part of the owners not to sell the site to anyone. It is not an obligation attaching to the ownership of the superstructure. I am unable to find how the application of S. 40 of the Transfer of property Act, if any, could change the character of the possession of the defendants and their predecessors-in-interest so long as there was no renewal or a fresh agreement. In any view, the plaintiffs'' suit must fail. The appeal is dismissed with costs. No leave.