VENKITESWARA PAI Vs. PADMAVATHI AMMAL

JUDGEMENT

(1.) These second appeals arise out Of two connected suits brought by the same person in the District Munsiffs Court of Cranganore, O. S. 79 of 1122 and O. S. 80 of 1122. Two adjoining shop buildings and the sites on which they stand formed the subject matter of dispute in these suits. O. S. 79 of 1122 related to the southern of the two buildings and its site, and O. S. 80 of 1122 to the northern building and its site. Plaintiff is the widow and sole heir of one Venkiteswara Prabhu, who died in Meenom 1121. Her case in each of the two suits was that the shop in respect of which that suit was filed was leased by her deceased husband to the defendant therein for a monthly rent of Rs. 5/- and the latter had defaulted to pay the rent from Karkatagom 1121 and also failed to execute a fresh lease deed in her favour in spite of her demand and that she was therefore entitled to recover possession of the shop and its site from him. Alternatively she claimed in each suit that she was entitled to recover possession of the property on the strength of her husband's title which had devolved on her after his death. One Kunhikayi was the defendant in O. S. 79 of 1122 and the lease in his favour was alleged to have been granted by the deceased Venkiteswara Prabhu on 28-5-1121. Raya Prabhu was the defendant in O. S. 80 of 1122 and the lease in his favour was said to have been granted on 15-5-1115. Both these persons entered appearance in their respective suits and filed written statements contesting the plaintiff's claim. Each of them denied the lease mentioned in the respective plaint and stated that he was in possession of the shop mentioned therein under a lease from one Venkiteswara Pai and that the said Venkiteswara Pai should also be impleaded in the suit. Venkiteswara Pai was thereupon impleaded as additional second defendant in both suits. After he was impleaded, he entered appearance in both suits and contended inter alia that at his request the deceased Venkiteswara Prabhu, who was his uncle's son, had given the sites to him permanently and without rent and also agreed that he might construct two shops therein at his own cost, that he had accordingly built the shops at his own cost and leased one of them to Kunhikayi and the other to Raya Prabhu, and that the plaintiff was not, therefore, competent to recover possession of the plaint properties in the two suits. On the consent of parties, the learned Munsiff tried the two suits together, and though he found against the leases, set up in the plaints, he held that the plaintiff was entitled to recover possession of the properties and decreed both suits allowing eviction as prayed for subject to payment of the value of the shops, to be fixed in execution, to the second defendant. On the strength of S.60 of the Cochin Easements Act, XXII of 1112, the second defendant's counsel had contended before the learned Munsiff that the plaintiff could not recover possession of the properties since, acting upon the license which the deceased Venkiteswara Prabhu had granted to him, the second defendant had executed works of a permanent character and incurred expenses in the execution. The Munsiff repelled that contention holding that there was no evidence of such a license having been granted by the deceased Venkiteswara Prabhu and that at best it could only be said that Venkiteswara Prabhu had given the land to the second defendant reserving the right to himself to recover it from him at any time. From the decrees in the two suits, appeals were filed in the District Court of Anjikaimal by Venkiteswara Pai as well as Kunhikayi and Raya Prabhu. Venkiteswara Pai's appeals were A. S. Nos. 235 and 236 of 1123, and the appeals of Kunhikayi and Raya Prabhu were A. S. Nos. 240 and 241 of 1123 respectively. The learned District Judge also heard all these appeals together. The only point that was pressed before him was that the plaintiff was not entitled to recover possession of the properties on account of S.60 of the Easements Act. The District Judge held that S.60 of the Easements Act did not apply to these cases as the position of Venkiteswara Pai was that of a lessee and not that of a licensee, and dismissed all the appeals ordering the parties to bear their costs. These second appeals have been filed by Venkiteswara Pai, the second defendant in both the suits, against the appellate decrees of the District Court. S. A. No. 293 of 1125 relates to O. S. 80 of 1122 and S. A. No. 294 of 1125 to O. S. 79 of 1122.

(2.) In this court also it was strenuously contended on behalf of the appellant that the plaintiff is not entitled to recover possession of the plaint properties on account of S.60 of the Easements Act, and a number of decisions of the Indian High Courts were relied upon in support of that contention. The decision in Jagat Singh v. Amritsar District Board, AIE 4940 Lahore 509, was also referred to by the appellant's counsel in support of the proposition that the principle of S.60 of the Easements Act should be applied to cases of licenses granted even before the said Act came into force. The respondent's counsel had no quarrel with any of those decisions and accepted all of them as laying down good law, but he pointed out that they had no application to this case. In all these cases it was admitted or clearly found that license had been granted by the owner and that acting on that license the licensee had executed works of a permanent character. There is no such admission or finding in this case. The appellant's counsel relied upon the evidence of DWs 2 and 9 to make out a case that a license within the meaning of S.52 of the Easements Act had been granted by Venkiteswara Prabhu to Venkiteswara Pai. But both these witnesses are interested persons and their evidence on the point has not been accepted by the courts below. In fact, the evidence of DWs 2 and 9 is practically to the effect that Venkiteswara Prabhu gave the land once and for all to Venkiteswara Pai and that the latter obtained full title to it, and not a mere license, from the grant given by Venkiteswara Prabhu see lines 30 to 34 of page 2 of the lower appellate court's judgment. I am therefore unable to hold on the evidence in the case that Venkiteswara Prabhu had granted a license to Venkiteswara Pai.

(3.) The second defendant had not set up the case of license in his written statement. What he stated therein was that Venkiteswara Prabhu had given the land permanently (i.e. absolutely) to him and not that he had granted to him a license. What the courts below have found is that Venkiteswara Prabhu had given an exclusive right of occupation of the land to the second defendant; and according to the lower appellate court, the legal effect of the transaction was to create a leasehold interest in favour of the second defendant. It was relying upon the decision in Vajravalan v. Abbu reported in 13 CLR 58, that the lower appellate court arrived at this conclusion. The appellant's learned advocate contended that the above decision was not applicable to the facts of this case, as the land given in that case was for putting up a house and not for putting up a shop as in this case. But there is nothing in that decision for drawing a distinction between a grant for putting up a house and a grant for putting up a shop. What is actually stated therein is:-