Kunhanna Naika vs Narayana Bhat

B.V. Nagarathna, J.—This second appeal is preferred by the defendant in O.S. No. 75/2008, being aggrieved by the judgment and decree passed in R.A. No. 29/2013 dated 21/12/2013, by the Addl. Senior Civil Judge and JMFC, Puttur, (D.K.), by which the judgment and decree passed in O.S. No. 75/2008 by the Prl. Civil Judge and JMFC, Puttur, dated 4/3/2013 is confirmed.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial court.

The respondent-plaintiff filed the suit seeking a declaration that he is the owner of plaint ''A'' schedule property and a decree of permanent injunction against the defendant from putting up any construction or altering the existing building in the ''B'' schedule property. He also sought for restoration of vacant possession of ''B'' schedule property from the defendant.

According to the plaintiff, he acquired ownership over Sy. No. 175/1C, measuring 1 acre 40 cents, situated at Nidpalli Village, Puttur Taluk, under a registered partition deed dated 30/3/1961. The plaintiff constructed a residential house on ''A'' schedule property, which is shown as plaint ''B'' schedule property. The defendant was an employee of the plaintiff and as such the plaintiff permitted him to reside in the said house in the year 1990. Therefore, the defendant is only a licensee. The defendant, at the time of filing the suit, was not attending to the work of the plaintiff. Further, the defendant was trying to illegally construct a "hatti and kottige" near the ''B'' schedule property. He had also stored construction materials in the second week of March 2008. This was opposed to by the plaintiff. Despite objection by the plaintiff, defendant continued to put up a permanent structure. Therefore, plaintiff terminated the licence and filed a suit seeking the aforesaid reliefs.

On service of notices and on service of suit summons from the trial court, the defendant appeared and stated that he was not aware that the plaintiff had acquired suit ''A'' schedule property under a registered partition deed. However, he acknowledged that the plaintiff was the absolute owner of ''A'' schedule property. He admitted the existence of a residential house on ''B'' schedule property, which was not constructed by the plaintiff. The defendant was also not a licensee. Therefore, the question of termination of the licence by the plaintiff did not arise. Thus, according to the defendant, he did not enter ''B'' schedule property as a licensee in the year 1990 and was not liable to surrender vacant possession of ''B'' schedule property. The defendant contended that he was in exclusive possession of 50 cents of land out of plaint ''A'' schedule property and had vast agricultural improvements described as ''X'' schedule property in the written statement, which consisted of a residential house, a cow shed, a store room, five coconut trees and a couple of jack fruit trees. That he had leveled yard in front of ''B'' schedule house, which stands in the name of defendant and that he was paying house tax regularly in respect of the said house. There was a thatched house in the ''X'' schedule property, which was constructed by the father of the defendant namely, Batya Naika about a century year ago. He was in possession of the said house till his death and thereafter, defendant continued to be in possession. He had renovated the said house by investing more than Rs. 1.00 lakh and had obtained electricity supply and the RR meter stood in his name. That he has been in continuous possession of ''X'' schedule property openly to the knowledge of the plaintiff and his predecessor-in-title for about 100 years and therefore, the defendant had acquired title by way of adverse possession to the ''X'' schedule property. Defendant prayed for dismissal of the suit and to declare that he had perfected his title over the ''X'' schedule property by adverse possession, by way of a counter claim.

Based on the above pleadings, the trial court framed the following issues for its consideration:

The plaintiff examined himself as PW1. He produced 14 documents, which were marked as Exs. P-1 to P-14. The defendant examined himself as DW1 and four other witnesses and produced 6 documents, which were marked as Exs. D-1 to D-6.

On the basis of the said evidence, the trial court answered issue Nos. 1 to 4 and 6 in the affirmative and issue Nos. 5 and 7 in the negative and decreed the suit of the plaintiff by granting the relief of declaration and permanent injunction in respect of ''A'' and ''B'' schedule properties and a direction was issued to the defendant to handover vacant possession of ''B'' schedule premises to the plaintiff within one month from the date of judgment and on failure to do so, the plaintiff was at liberty to proceed in accordance with law. The counter claim of the defendant was dismissed with costs.

Being aggrieved by the judgment and decree of the trial court, the defendant filed R.A. No. 29/2013 before the first appellate court, which, on hearing the parties formulated the following points for its consideration:

"i) Whether the appellant/defendant had proved that he is the absolute owner and had perfected his title over the ''X'' schedule property mentioned in the written statement?

ii) Whether the respondent/plaintiff had proved that the appellant/defendant was in permissive possession of plaint ''B'' schedule property?

iii) Whether the judgment and decree passed by the lower court called for interference?

iv) What order?"

The first appellate court answered point Nos. 1 and 3 in the negative and point No. 2 in the affirmative and dismissed the appeal by confirming the judgment and decree of the trial court. Being aggrieved by the judgment and decree of the first appellate court, the defendant has preferred this second appeal.

I have heard learned counsel for the appellant and learned counsel for the respondent/caveator and perused the material on record.

Appellant''s counsel submitted that the relationship between the parties was one of licensor and licensee. In which event, Section 60(b) of the Indian Easements Act, 1882 (''the Act'' for short) had to be complied with in the matter of termination of licence. The same has not been done in the instant case. Therefore, the courts below could not have granted the relief sought by the plaintiff, particularly with regard to injunction and handing over vacant possession ''B'' schedule property to the plaintiff. Learned counsel submitted that the defendant is not serious in pressing his counter claim with regard to his plea of adverse possession. But the plaintiff could not have been granted the consequential reliefs sought by the plaintiff. He, therefore, contended that substantial questions of law would arise in the appeal, which may be admitted for a detailed hearing.

Per contra, learned counsel for the caveator submitted, that the relationship between the plaintiff and defendant is not that of licensor and licensee. That the defendant was working for the plaintiff''s family. It was in relation to that fact, the defendant was permitted to reside in the house, the defendant cannot contend that the house belongs to him, nor can he seek adverse possession. As the relationship between the parties is not on cordial terms, the plaintiff no longer wants the defendant in the house. Therefore, the plaintiff sought the aforesaid reliefs, which have been rightly granted by the courts below. He also contended that the defendant on the one hand, cannot seek the relief by way of adverse possession and on the other hand, state that he is a licensee. These are contrary stand taken by the defendant which have been rightly not been granted to the defendant. He, therefore, contended that there is no merit in the appeal and the same may be dismissed, in limine.

Having heard the learned counsel for parties and on perusal of the material on record, it is noted that the defendant has admitted that ''A'' schedule property belongs to the plaintiff and that he has been residing in ''B'' schedule property. He has also admitted the fact that he has carried out certain renovations to the house of ''B'' schedule property and that the improvements have been done to the property of the plaintiff and without the plaintiff''s objection thereto and therefore, the defendant has sought, by way of counter claim, a declaration that he has perfected his title by way of adverse possession.

It is also contended that defendant entered the premises as a licensee and therefore, under the provisions of the Act, the license had to be terminated in accordance with the Act and that Section 60 of the said Act has not been complied with by the plaintiff. Therefore, it has been contended that the plaintiff is not entitled to consequential reliefs. The trial court as well as the first appellate court have concurrently found that the suit ''A'' schedule property belongs to the plaintiff that in ''B'' schedule property, the defendant was permitted to reside therein as he was an employee of the plaintiff. It may be that defendant''s father was also an employee of the plaintiff''s family and therefore, he was also permitted to reside therein and on his demise, the defendant has continued to reside in the premises. The fact that defendant was permitted to reside in the ''B'' schedule premises would not entitle him to claim any right, title or interest therein by way of adverse possession, neither has he entered it as a licensee. It is only an accommodation provided by plaintiff''s family to the defendant so as to make it convenient for the defendant to serve the plaintiff and his family as and when required. But the defendant taking advantage of his residence in the ''B'' schedule premises, tried to construct a ''hatti and kottige" and when that was objected to by the plaintiff, defendant did not heed to the words of the plaintiff and instead, has tried to seek title to the property by way of adverse possession.

What emerges from the a foresaid facts is that the defendant was only given a permissive possession on account of his employment with the plaintiff''s family. There was no legal relationship between the parties as a licensor and licensee. Therefore, the provisions relating to licence including Section 60 of the Act do not apply in the instant case. Merely because the defendant was permitted to reside in the ''B'' schedule premises, the defendant could not have taken steps for construction of "hatti and kottige" as if the said property belonged to him. In fact, it has also come on record that the defendant was not working for the plaintiff or his family members at the time of filing the suit. Therefore, his residence in ''B'' schedule premises itself was not necessary.

Compounding this fact was that defendant tried to take steps in respect of ''B'' schedule property as if he was the owner. When the directions given by the plaintiff were not heeded to by the defendant, plaintiff was constrained to file the suit seeking the aforesaid reliefs.

On a perusal of the judgments of the courts below, it becomes evident that the defendant was in possession of the ''B'' schedule house with the permission of the plaintiff and on account of his employment with the plaintiff and his family. There was no relationship between the parties as a licensor and a licensee. The relationship was in the nature of a master and a servant. In that view of the matter, the concurrent findings of both the courts below to the effect that the provisions of the said Act concerning the rights of a licensee were not applicable, is just and proper.

Having regard to the facts of the case, both the courts below were right in granting the relief of declaration and consequential reliefs of injunction and mandatory injunction were just and proper. I do not find any substantial question of law which arises in this appeal. Therefore, the appeal is liable to the dismissed.

One aspect that requires consideration is, the fact that the trial court had granted one month''s time to the defendant to vacate and handover vacant possession of the ''B'' schedule house property to the plaintiff. The suit is of the year 2008. The judgment of the trial court is dated 4/3/2013 and the first appellate court disposed of the appeal on 21/12/2013. This second appeal is of the year 2014. Therefore, nearly eight years have been spent in litigation and the plaintiff has been trying to seek the reliefs as against the defendant.

While making submissions in the matter, one of the aspects which came up for consideration was, as to whether any time frame could be given to the defendant for vacating the ''B'' schedule premises.

Learned counsel for the appellant sought two years time. While learned counsel for the respondent/caveator objected to this time frame and submitted that at the most, six months time could be granted.

Having regard to the fact that the defendant has stayed for considerable length of time in the said premises, I am of the view that, in the interest of justice, a period of one year from today ought to be given to the defendant to vacate and handover vacant possession of the ''B'' schedule premises to the plaintiff. This is subject to the defendant giving an undertaking to this court by way of an affidavit that he would vacate and handover vacant possession of the ''B'' schedule premises to the plaintiff on or before 17/11/2016.

Till the defendant vacates and handover possession of the ''B'' schedule premises to the plaintiff, the defendant shall not put up any construction nor alter it in any way. The defendant shall also not create any third party rights in respect of the schedule premises.

It is made clear that subject to the undertaking given in the aforesaid terms before this court within a period of three weeks from the date of release of the certified copy of this judgment, the defendant shall be entitled to the aforesaid period. It is also made clear that in case there is any violation of the aforesaid terms and conditions, the respondent/plaintiff is at liberty to proceed in accordance with law by executing this judgment as if no time was granted to the defendant in the aforesaid terms.

In the result, the appeal is dismissed subject to the aforesaid directions. Parties to bear their respective costs.