Conditions Mentioned U/s. 100 Read With Order XLII Rule 2 Of CPC Must Be Complied With To Admit & Maintain A Second Appeal: Kerala High Court

Emphasizing that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the CPC or Art.133(1)(a) of the Constitution, the Kerala High Court held that a second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal.

Highlighting that grant of relief of fixation of boundary and other reliefs by the trial court and the appellate court is perfectly justified, a Single Judge Bench of Justice A. Badharudeen observed that “even though the defendant was given possession of B schedule by the father with permission, continuance of the same till the date of Ext.A3 by the defendant to be held as one with permission and his status is not that of a trespasser so that the plaintiff could succeed in a suit filed seeking mandatory injunction”.

Referring to the ratio laid down in case of Sant Lal Jain v. Avtar Singh [AIR 1985 SC 857], the Bench concluded that “the relief of mandatory injunction could not be denied in a Suit filed for mandatory injunction, couched in the form of recovery of possession, in order to avoid multiplicity of suits and to avoid the licensor to be driven to file another suit”.

Advocate K. N. Chandrababu appeared for the Petitioner whereas Advocate G. Krishnakumar appeared for the Respondent.

The brief facts of the case were that the father of the Plaintiff and defendant was the owner of the property extent to 10.53 Ares. He divided the property among his wife, two sons, and a brother. As per the settlement deed, the plaint A scheduled property having an extent of 2.33 Acres was allotted to the defendant which comprises one shop with a residential portion. The plaintiff, who opposed the said allotment and execution of the settlement deed in favour of the defendant, filed an original suit to cancel the title deed of the defendant. Plaint B scheduled property, which was given by the father to the plaintiff as a licensee, and the said license continued even after the execution of the settlement deed in favour of the defendant. Thereafter, the defendant terminated the license by issuing a notice. Since the plaintiff failed to vacate the building, the present Suit was filed seeking fixation of the southern boundary of A schedule with that of the plaintiff, for mandatory injunction directing the plaintiff to vacate the B schedule building and also claiming Rs.1,000/- per month as damages for use and occupation of the same by the plaintiff. The plaintiff opposed the contention raised by the defendant and contended that the Suit was one filed to counterblast of original petition, filed by the plaintiff to cancel the title deed of the defendant and other deeds executed by the father.

According to the plaintiff, the defendant managed to execute a settlement deed in his favour grabbing property earmarked for the plaintiff. It was contended that plaint A schedule was assigned to the plaintiff by the father and also, he had been using the same for about 20 years. The trial Court addressed the issues and decreed the suit by directing a plaintiff to vacate Plaint B's scheduled room within two months, to pay the defendant an amount of Rs.1000/- per month as damages for use. On appeal, the Sub Judge also confirmed the said finding. Hence, the plaintiff approached the Court.

After considering the submission, the Bench noted that no specific pleading was raised to claim adverse possession, with the essentials to perfect possessory title.

The Bench therefore went on to emphasize that a suit for recovery of possession or eviction should have been filed and a suit for mandatory injunction for the said relief is quite insufficient.

Going further, the Bench highlighted that the nature of possession of the plaintiff where there are no specific pleadings to claim adverse possession, and in a case where the title claimed by the plaintiff over plaint A schedule allegedly earmarked for the plaintiff, is not established at all.

Referring to the case of Joseph Severance v. Benny Mathew, [2005 KHC 1436], the Bench reiterated that “the correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the license. The licensee may have to continue to be in occupation of the premises for some time to wind up the business, if any. In such a case the licensee cannot be treated as a trespasser.”

“A licensee’s occupation does not become hostile possession or the possession of a trespasser the moment the license comes to an end. The licensor has to file the suit with promptitude and if it is shown that within a reasonable time, a suit for a mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises, the suit will be maintainable”, further reiterated the Bench.

The Bench further expressed that the defendant/appellant raising the contention to the effect that instead of mandatory injunction, a suit for eviction or recovery, ought to have been filed, would succeed. In fact, no substantial question of law in the given facts of the case is to be formulated to admit the Second Appeal.

Accordingly, on finding the appeal to be meritless and no substantial question of law to be decided, the High Court dismissed the appeal.

Cause Title: Antony Frederic Baiju v. Titus Shaiju [Neutral Citation: 2023/KER/62662]

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