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B.K. Narayana Pillai vs Parameswaran Pillai on 28 April, 2009

Kerala High Court

B.K. Narayana Pillai vs Parameswaran Pillai on 28 April, 2009



IN THE HIGH COURT OF KERALA AT ERNAKULAM

RFA.No. 90 of 2006()


1. B.K. NARAYANA PILLAI,
… Petitioner

Vs



1. PARAMESWARAN PILLAI,
… Respondent

2. RADHAKRISHNAN, S/O. LATE BHASKARA PILLAI

For Petitioner :SRI.V.K.RADHAKRISHNAN NAIR

For Respondent :SRI.C.UNNIKRISHNAN (KOLLAM)

The Hon’ble MR. Justice PIUS C.KURIAKOSE

Dated :28/04/2009

O R D E R
PIUS C. KURIAKOSE, J.
———————————————–
RFA. No. 90 OF 2006
———————————————–
Dated this the 28th day of April, 2009

J U D G M E N T

The defendant in a suit for mandatory injunction, recovery of arrears of licence fees and consequential reliefs in which a decree of mandatory injunction was passed against him is the appellant in this appeal. The parties will be referred to as they were before the trial court.

2. The case of the plaintiff as averred in the plaint is that the plaint schedule property consists of 50 cents of land and a temporary shed along with the saw mill situated at Ulloor in a commercially important location within the limits of the Thiruvananthapuram city Corporation. The land belonged to late Sri.Bhaskara Pillai who granted licence to the defendant for the purpose of conducting trade in timber on 02/6/1967. The defendant is carrying on trade in timber in the schedule premises as licencee since 02/06/1997 and he executed a licence deed in favour of Bhaskara Pillai on  RFA. N0. 90/06 30-09-1967. Sri.Bhaskara Pillai settled the property by executing settlement deed No.3648/1981 in favour of his children Nagarajan Pillai and Parameswaran Pillai. Nagarajan Pillai in turn settled his interest in the property in favour of his brother Radhakrishnan. The suit is filed by Parameswaran Pillai and Radhakrishnan ( respondents 1 and

2) as plaintiffs 1 and 2. Bhaskara Pillai used to take usufructs from the trees standing in the plaint schedule property and was enjoying the petition schedule property subject to the right of the defendant to carry on business as licencee and it has been so held by the Munsiff Court, Thiruvananthapuram in its judgment in O.S.No. 1181/1978 which has become final. Since the plaintiffs required the plaint schedule property for their own use, they terminated the licence by issuing notice through lawyer with effect from 02/03/1994 and requested the defendant to vacate the premises.

RFA. N0. 90/06

3. The further case of the plaintiff is that the defendant committed default in payment of licence fee since September 1978 and after adjusting an amount of Rs. 2000/- which is available for set off, an amount of Rs. 16,270/- is due to the plaintiff. The defendants sent reply raising untenable contentions and without discharging arrears of licence fees. Hence the suit for a mandatory injunction commanding the defendants to remove the temporary sheds and saw mill and also to remove all the logs of timber kept on the plaint schedule property and to vacate the plaint schedule property and also for recovery of arrears of licence fee.

4. The defendant filed written statement contending that the suit is not maintainable. They also contended that the suit schedule property which was vacant on 10-02-1966 was leased out by late Bhaskara Pillai to the defendant on that day for the conduct of business in timber upon  RFA. N0. 90/06 execution of lease deed . The defendant levelled up the property and constructed a shed for the timber depot. Thereafter timber depot was started under the name and style of “Damor Brothers”. Since the land was leased out for commercial purposes prior to 20-05-1967 and sine the defendant has constructed buildings upon the land much prior to 20-05-1967, the defendant is entitled to the protection of Section 106 of the Kerala Land Reforms Act. The status of the defendant is not that of a licencee. No deed of licence was executed by the defendant on 30- 09-1967. The defendant was in possession of the land as a lessee since 10-02-1966. An amount of Rs. 2,000/- was given to the father of the plaintiff – Bhaskara Pillai out of which Rs. 1000/- was fixed as premium. The settlement deed did not confer any rights upon the plaintiff in the plaint schedule property. The lessor’s rights in the land became vested with the Government under Section 72 of the Kerala  RFA. N0. 90/06 Land Reforms Act. The plaintiff or their predecessor never took usufructs from the trees standing in the plaint schedule property since 10-02-1966. O.S.No. 1181/1976 was a suit simplicitor for injunction and question of tenancy was never considered in that suit. The lease is not liable to be terminated and the defendant is not liable to be evicted. The above written statement was filed on 13-07-1975 and afterwards on 23-3-2000, the defendant would amend the written statement contending that if for any reason the court finds that the relationship between Bhaskara Pillai and the defendant was that of licensor/licensee, the licence is irrevocable since the licence was coupled with grant of interest in immovable property and acting on the licence, the defendant has executed works of permanent character incurring expenditure in the execution. Thus through the amended written statement, the benefit of Section 60(b) of Easement Act was also claimed.

RFA. N0. 90/06

5. The learned Subordinate Judge formulated the following issues for trial :

1) Is the defendant licencee or lessee of the plaint schedule ?

2) Is the defendant entitled to get protection under

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