Owner can sue for mandatory injunction

When the owner of immovable property terminates a licence he can sue for mandatory injunction directing the licensee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession.



IN THE HIGH COURT OF KERALA

S.A. No. 695 of 1989

Decided On: 23.10.1989

 Ayissa Ummar Vs.  Ami

Hon'ble Judges/Coram:

M.M. Pareed Pillay, J.

Citation: 1990 (1) KLT 98

1. Appellants are the Defendants. Plaintiff's suit was decreed finding that the Plaintiff is entitled to the mandatory injunction against the Defendants. This has been confirmed by the Sub Judge in the appeal.

2. Plaintiff filed the suit alleging that the Defendants are residing in his house as permitted by him and that they should be directed to vacate the premises. Plaintiff gifted his 1/3 right in the property as per Ext. A-1 in 1968 to his sister (first Defendant) and his brother. It is his case that as per Ext. A-6 surrender deed his sister and brother realised their right to him and thus he become the absolute owner of the property. He permitted his sister to reside in the house along with her children. Defendants denied Ext. A-6 surrender deed and contended that the first Defendant has been residing in the building since her marriage. It is also contended that they follow Mappila Maru-makkathayam Law and the Plaintiff being the karanavan of the thayezhi has only factional right in the property. Plaint allegation that the Defendants are only licensees is also refuted.

3. The Court below rejected all the contentions of the Defendants and held that they are only licensees. That being a finding of fact this Court cannot interfere with it.

4. Counsel for the Defendants contended that even if the Defendants are only licensees Plaintiff is not entitled to the mandatory injunction as institution of a suit for recovery of possession is his only available remedy. Whether the Plaintiff is entitled to the grant of a mandatory injunction against the Defendants who are only licensees in the property is the moot point that arises for consideration in the Second Appeal.

5. A licensee has no interest in the land and his possession is purely permissive. A licence does not create any estate or interest in the property to which it relates. As licensees the Defendants cannot obviously claim any right of possession over the property. In the case of a licence, though the occupation is with the licensee the control or possession of the property is with the licensor through such a licensee. The occupation of the licensee being purely permissive under the Licensor the former is under legal obligation to restore the possession of the property to the latter whenever licence is terminated. Licensor can definitely call upon the licensee to vacate the premises. The Licensor is legally entitled to the relief by way of mandatory injunction if a suit is filed within a reasonable time after the termination or revocation of the licence.

6. Even under the English law a suit for injunction to evict a licensee has always been held to be maintainable. In Thomson v. Park 1944 2 All.E.R. 477 it was held that as the Plaintiff had revoked the licence and the Defendant re-entered the premises as trespasser Plaintiff was entitled to injunction. In Minister of Health v. Bellotti 1944 1 All.E.R. 233 injunctions was granted against a licensee who was in possession after the termination of the licence. In that case it was held that the licensee was entitled to a reasonable notice so that he could collect his property and quit the premises. It was further held that though the notice in that case did not give reasonable time yet since by the institution of the suit, the licensee had sufficient time to vacate the premises injunction could be granted. Where a licensor approaches the Court for injunction within a reasonable time after the licencee is terminated, he cannot be denied of it

7. As it has been found by the Courts below that the Defendants are only licensees, the legal possession of the house is with the Plaintiff." Defendants have no independent  separate interest in the house. A licensees Defendants have no interest in the building and their possession cannot exclude the rightful possession of the Plaintiff as owners of the property. Merely because other modes of eviction are available to the Plaintiff his remedy by way of mandatory injunction cannot be denied to him. In Prahirondra Nath v. Narendra Nath MANU/WB/0038/1958 : AIR 1958 Cal 179 the Calcutta High Court held that the owner of an immovable property on termination of the licence is entitled to maintain a suit for mandatory injunction against the licensee to vacate the property. The above decision has been relied in Rajappan v. Veeraraghavan Iyer 1969 K.L.T. 811 and Krishna Moorthy Iyer, J. held that when the owner of immovable property terminates a licence he can sue for mandatory injunction directing the licensee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession. As the remedy of mandatory injunction is available to the Plaintiff as against the Defendants who are licensees the challenge against maintainability of the suit fails.

There is no merit in the Second Appeal and hence the same is dismissed without costs.