GOPALAN NAIR Vs. THEVI AMMA THANKAMMA
LAWS(KER)-1968-2-20
HIGH COURT OF KERALA
Decided on February 29,1968

GOPALAN NAIR Appellant
VERSUS
THEVI AMMA THANKAMMA Respondents

JUDGEMENT

- (1.) This Second Appeal is by the plaintiff in O. S.128 of 1960 on the file of the Munsiff's Court, Mavelikkara. The suit was for a permanent injunction restraining the defendants from constructing a building in the plaint schedule property, to direct them to remove the building, if any, constructed therein, and for recovery of ground rent for the use of the said property at the rate of Rs. 10 per annum.
(2.) The plaint schedule property has an area of 3 cents; and it is part of Survey No. 70/18 in Vallikunnu Village, Mavelikkara Taluk. This survey number has an area of 90 cents; and it belongs, admittedly, to the plaintiff's tarwad. The plaintiff and the first defendant are the children of one Krishnan Nair through different wives; and the second defendant is the son of the first defendant. Krishnan Nair has been conducting a market in the above property over an area of 40 cents. The plaint property is the south western portion of the said 40 cents. Krishnan Nair constructed a shop building in the plaint property; and he sold the building to the first defendant as per sale deed Ext. D-1 dated 3-1-1123. The plaintiff alleged that Krishnan Nair was conducting the market for the benefit of the plaintiff and his mother; that the shop building was constructed with the permission of the plaintiff; that it was demolished and removed by the first defendant about five years ago, as required by the plaintiff and Krishnan Nair; and that the defendants were forcibly attempting to construct a new building in the plaint property. It was also alleged that, after the demolition of the shop building, the plaintiff had been in possession of the plaint property, and that he had been using it thereafter as part of the market area. The suit was contested by defendants 1 and 2 only. They contended that defendants 3 and 4 were unnecessary parties, that Krishnan Nair was conducting the market in his own right, that the plaintiff's tarwad had surrendered its rights in respect of the 40 cents of land in which the market was conducted in favour of Krishnan Nair, and that the plaintiff's tarwad lost its title to the said property by adverse possession. They denied the alleged demolition of the shop building, and stated that they were not constructing any new building; but they were only replacing the old walls, which became damaged due to old age. They also contended that the plaint property would not fetch a ground rent of more than one rupee per year, and that the plaintiff was not entitled to any of the reliefs sought for.
(3.) The Trial Court held that the plaint schedule property belong to the plaintiff's tarwad; that Krishnan Nair had only a licence in respect of the 40 cents of land which he was using for the market; that he constructed the shop building in the plaint property with the plaintiff's permission; that the building was actually demolished by the first defendant as alleged in the plaint; that, as Krishnan Nair constructed the building only as a licensee, the licence became revoked when the building was demolished; and that thereafter the first defendant had no right to construct any building in the plaint property. It fixed the ground rent of the property at Rs. 2 per annum. Accordingly, the Trial Court passed a decree directing the defendants to surrender the plaint property, after removing the building therein, and to pay the plaintiff ground rent at the rate of Rs. 2 per year. Defendants 1 and 2 appealed to the Sub Court of Mavelikkara. The learned Subordinate Judge held that the licence in favour of Krishnan Nair was irrevocable, that the demolition of the building was only for reconstruction; and that, as the reconstruction had commenced before the institution of the suit, there was no revocation of the licence. Accordingly, the lower appellate Court allowed the appeal and set aside the decree for the removal of the building and surrender of the plaint property. The plaintiff has, therefore, filed this Second Appeal.;


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