JOSEPH SEVERANCE Vs. BENNY MATHEW

JUDGEMENT

(1.) Appellants call in question legality of the judgment rendered by a learned Single judge of the Kerala High Court in a Second Appeal filed by the respondents holding that the suit filed by the present appellants as plaintiffs for mandatory injunction as well as for, prohibitory injunction was not maintainable.

(2.) The suit was filed in the following factual background: The plaint schedule property originally belonged to Francis Severance, the father of appellants 1 to 3 and grand-father of appellants 4 and 5. Francis Severance had four children and one of the sons, Joseph Severnce, died in the year 1970. His widow was Hilda Severance. Said Francis Severance died in the year 1966. After the death of Francis Severance the plaint schedule property devolved on appellants 1 to 3. Shri K.V. Mathew, the husband of the 2nd respondent and father of respondents 1 and 3 and the 4th respondent entered into an agreement of licence with appellants and Hilda Severance with respect to the plaint schedule property under which permission was granted to Mathew to construct a cinema theatre for a period of five years. The licence was renewed from time to time and on 11.2.1991 by Ext. A1 agreement, the licence, was renewed for a period of five years. In the meantime Hilda Severance also died. The condition in Ext. A1 agreement was that on the expiry of five years from 11.2.1991, the licensee had to surrender vacant possession of the plaint schedule property on demolishing the building and the structures thereon. Before the expiry of five years mentioned in Ext. A1 agreement, the licensee, Mathew died on 24.5.1994. After that Ext. A2 notice was sent to respondents which yielded no result. The suit was filed on 12.2.1996.

(3.) The trial court as well as the First Appellate Court found that on the death of Mathew the licence came to an end and thereafter the possession of all the four defendants were as trespassers. After finding that their possession was as trespassers both the trial court and the First Appellate Court held that mandatory injunction can be granted as prayed for by the plaintiffs. Though some other points were urged during trial and before the First Appellate Authority, they were decided against the defendants. The main argument before the High Court in Second Appeal was that since they were trespassers the property could be recovered by the plaintiffs only by filing a suit for recovery of possession. The High Court accepted the plea and held that the suit as framed was not maintainable. It was held that where an ex-licensee is in possession the licensor can only seek recovery of possession from him which is the legal remedy whereas the remedy of injunction is an equitable remedy. It was however held that licensees occupation does not become hostile possession or possession of trespasser the moment the licence comes to an end. But for maintaining a suit against his licensee for mandatory injunction directing him to vacate the property the suit has to be filed without delay and with promptitude. In the instant case it was held that there was considerable delay in bringing the suit for mandatory injunction after the licence came to an end. Mathew (original licensee) died on 24.5.1994 and the suit was filed on 12.2.1996. The High Court held that there was unexplained delay in filing the suit. The notice which was issued was also after about 19 months of the death of the original licensee. Plea of plaintiffs was that they gave time to the defendants to wind up the business and with a view to avoid inconvenience to them and the suit was filed immediately after the expiry of the licence period. The High Court held that since the suit was filed not against the original licensee but against the legal heirs, the delay was abnormal. It was, however, held that though the licensee is the actual occupant but the licensor is the person holding the control or possession of the property through his licensee placing reliance on the decisions of the Calcutta High Court in Sisir Kumar v. Susil Kumar AIR 1961Cal229 and of the Patna High Court in Jagadish Chandra v. Basant Kumar AIR 1963Pat308 .