NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

TRIMESTER – 6

PROJECT ON PROPERTY LAW - I

CASE ANALYSIS OF

Abraham Mathew & Others v/s Mariamma Yohannan

Decided On, 18 February 2014

At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. HARILAL

SUBMITTED TO : SUBMITTED BY :

Associate Professor.Dr.Sanjay Kumar Yadav Sonia Sabu : 2018BALLB99

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 ACKNOWLEDGEMENT
I would like to place on record special gratitude to my course teacher Associate Professor Sanjay
Kumar Yadav for his timely suggestions, critical evaluation, creative guidance and great support
throughout the project research.

Also I owe a great deal of gratitude to the staff of Gyan Mandir, Library for providing extensive
database resources

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 TABLE OF CONTENTS

MATERIAL FACTS…………………………………………………………………..7

ISSUES OF THE CASE…………………………………………………………….…8

ARGUMENTS OF APPELLANT…………………………………………….………9

ARGUMENTS OF RESPONDENT………………………………………………….10

DECISION OF THE CASE…………………………………………………………...11

RATIO OF THECASE………………………………………………………………..11

CRITICAL COMMENTS……………………………………………………………. 12

CONCLUSION AND SUGGESTIONS………………………………………….…...15

BIBLIOGRAPHY……………………………………………………………….…….16

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STATEMENT OF PROBLEM
It is a matter of discussion that what will be the character of a licensee on a property, whose
license has been terminated by licensor.Whether he will be immediately considered as a
tresspasser who can claim hostile possession against true owner is an important factor to
determine the law regarding the time limit for filing mandatory injunction simpliciter for
vacation of property against such a licensee whose license has been terminated.

REVIEW OF LITERATURE
PROVISIONS

 Section 39 of the Specific Relief Act, 1963

Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel

 Section 52 of the Indian Easement Act, 1882

'License' defined.--Where one person grants to another, or to a definite number of other persons,
a right to do, or continue to do, in or upon the immovable property of the grantor, something
which would, in the absence of such right, be unlawful, and such right does not amount to an
easement or an interest in the property, the right is called a license.

CASELAWS

 Sant Lal Jain Vs. Avtar Singh (1985 (2) SCC 332)

The defendant/respondent took from the appellant on licence for one year under a deed dated
10.12.1969 the suit shed for carrying on the work of repair of motors, tractors, etc. But since he
did not vacate the shed after the expiry of the period he terminated the licence and filed the suit
on 15.2.1973 for a mandory injunction directing him to vacate the premises.The defendant
contended that there was undue delay from the part of the plaintiff to file the suit.The court held
that  once a licensee always a licensee would apply to all kinds of licences and that it cannot be
said that the moment the licence it terminated, the licensee-s possession becomes that of a

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trespasser. Where a licensor approaches the court for an injunction within a reasonable time after
the licence is terminated, he is entitled to the injunction. On the other hand, if the licensor causes
huge delay the court may refuse the discretion to grant an injunction on the ground that the
licensor had not been diligent.

 Joseph Severance Vs. Benny Mathew (2005(7) SCC 667 

In this case, true owner granted license to the defendants for five years to construct a cinema
theatre.As the licensor died, license came to an end after 5 years and defendants were asked to
vacate the property which was not done.After 2 years a suit for mandatory injunction was filed.
The trial court as well as the First Appellate Court found that on the death of licensor 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. 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 licensee's 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

BOOKS

 Sanjeeva Row, Transfer of Property Act, (Vol. 1, edition, 2012, Universal

This book provides basic principles and doctrines of Transfer of Property Act.

 Poonam Pradhan, Property Law (2nd Edition, 2013,  LexisNexis) 253.

This book gives analysis of basic doctrines and related case laws under property law.

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HYPOTHESIS

Where the possession of a licensee becomes adverse, after the termination of licence,his
possession adverse to the knowledge of the licensor must be proved by cogent and convincing
evidence. Mere possession for however length of time does not result in converting the
permissive possession to the adverse possession and a suit of mandatory injunction for vacation
of property is maintainable against such a licensee.

RESEARCH QUESTIONS
1. What is the circumstance in which permissive possession can be ripened to or converted
to hostile possession, after the revocation of licence or permission, requiring suit for
recovery of possession?
2. What is the remedy available for a licensor against a licensee for vacation of property
after the termination of the license by the licensor ?
3. Who can claim the adverse possession against the true owner ?

RESEARCH OBJECTIVES
 To analyse the case of Abraham Mathew & Others v/s Mariamma Yohannan.
 To examine the Section 52 of the Indian Easement Act and Section 39 of the Specific
Relief Act.

RESEARCH METHODOLOGY

Doctrinal method of study has been used in this project

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 MATERIAL FACTS
1) The plaintiff (respondent here) is the wife of one Yohannan, the deceased younger
brother of the 1st appellant. The 2nd and 3rd defendants are the wife and son of the 1st
defendant.
2) According to the plaintiff, the plaint schedule property belonged to the above said
Yohannan, as per sale deed No.911/1977 of Ranni SRO. After the death of Yohannan on
3/2/1990, the property devolved upon the plaintiff and her two children - Sabina and
Jobina.
3)  As the plaintiff and her husband were working in Germany, in order to safeguard the
welfare of the children, who were studying in Kerala, the management of the plaint
schedule property and the building therein was entrusted to the 1st defendant, who is the
elder brother of the plaintiff's husband. Thus, permission was given to reside in the
building for the better interest of their property and children studying in Kerala.
4)  Thereafter, the 1st defendant and his family members have been residing in the building
in the plaint schedule property under the permission granted by Yohannan. Thus, the 1st
defendant was acting only as an agent of Yohannan.
5) Now, the plaintiff has revoked the above said permission and the defendants were asked
to vacate the building. But the defendants are not willing to surrender possession of the
property and to vacate the building thereon.
6) Thus the plaintiff filed a suit for mandatory injunction, seeking a direction against the
defendants to surrender the possession of the plaint schedule property and the building
therein and in the event of defendants refusing to do so to evict them through court and
also for a permanent prohibitory injunction restraining the defendants from committing
any acts of waste in the property.
7) The trial court and lower appellate court held in favour of plaintiff and the defendants
filed appeal in the High Court.

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 ISUUE IN THE CASE
1) Whether a suit for mandatory injunction simpliciter requiring vacation of the property is
maintainable against the licensee or a person in permissive occupation whose licence or
occupation has been terminated by the licensor?
2) Does the licensee,who do not evict the premise even after the termination of license by
the licensor, immediately become a trespasser who can claim hostile possession against
true owner?
3) Whether the appellants in the case have have succeeded to prove the right of adverse
possession against the plaintiff?

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 ARGUMENTS FROM APPELLANTS
1) The main argument advanced by the learned senior counsel Sri. Krishnan Unni is that the
lower court concurrently failed to consider the question whether the suit for mandatory
injunction simpliciter requiring vacation of the property alone is sufficient and
maintainable against the licensee or a person in permissive possession after the
termination of licence or revocation of permission. The courts below ought to have
considered the question of maintainability of the suit as a preliminary issue, though such
a ground was raised in the written statement.
2)  The lower court failed to consider the pleadings of adverse possession and the evidence
available on record thereunder in its correct perspective. From the evidence on record, it
is manifestly clear that the defendants have made out and established all the ingredients
of adverse possession.
3) The suit was bad for non-jointer of necessary parties. All the legal heirs of the deceased
Yohannan are not made parties in the suit. Similarly, all the children of the 1st defendant
also are not made parties in the Original Suit.
4) The learned senior counsel for the appellants further submits that the possession, though
it was commenced as a permissive one, it can be subsequently ripened to hostile
possession against the true owner of the property, by long uninterpreted and peaceful
possession, after the revocation of licence or permission. In such event, the licensee, who
is not willing to vacate the property can be treated as a trespasser with 'animus
possidendi' and in such case licensor will have to file a suit for recovery of possession. In
the instance case, the defendants have been continuing in possession of the property and
building therein since the last more than 12 years and in such circumstance the appellants
cannot be evicted by filing a simple suit for mandatory injunction to vacate the property.

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 ARGUMENTS FROM RESPONDENTS

1) According to the learned counsel, the reliefs sought for in the suit are proper and
maintainable in view of the pleadings in the suit. A suit for mandatory injunction
simpliciter requiring the defendants to vacate the property is maintainable in view of the
facts and circumstances of the case. The learned counsel for the respondent submitted
that if the licensor had filed the suit with promptitude within a reasonable time, a suit for
mandatory injunction to vacate the premises alone is sufficient and maintainable to get a
proper relief, even if the licensee continues his occupation after the termination of licence
referring to the cases of Sant Lal Jain Vs. Avtar Singh,1Joseph Severance Vs. Benny
Mathew2 and Aspinwal & Co. Ltd. Vs. Soudamini Amma.3
2) The learned counsel for the plaintiff contended that the pleadings in the written
statements are mutually opposed and destructive. In short, the right of adverse possession
can be claimed against the true owner of the property. One cannot be a true owner as well
as a person in adverse possession simultaneously; but the defendants have pleaded both
rights.
3) The reliefs sought for are against the persons who are residing in the property and there is
no need to seek any relief against the persons who are not residing in the property or
holding the property. Similarly, in a suit for injunction, one co-owner can maintain the
suit for and on behalf of other co-owners also so long as the plaintiff does not claim
exclusive right or exclusive possession. According to the learned counsel, at all points,
the findings arrived at by the courts below are justifiable.

DECISION OF THE CASE

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The court did not find any merits in the appeal and the appeal was dismissed by the court.

RATIO OF THECASE
The court found out the ratio of the case as :
 The real test to prove the maintainability of the suit for mandatory injunction injunction
simpliciter requiring vacation of the property against the licensee or a person in permissive
occupation whose licence or occupation has been terminated by the licensor is that, whether on
the expiry of licence the licensee has asserted his hostile title and whether the licensor had slept
over the matter despite the assertion of hostile title made by the licensee, after the termination of
licence.In this case, on 15/06/2005, the plaintiff revoked the permission granted to the 1st
defendant to reside in the property and the 1st defendant was asked to vacate the premises. But,
he was not willing to vacate the premises. Immediately, on 5th September, 2005 itself, he filed
the present suit seeking mandatory injunction to vacate the property and the building therein. It
cannot be held that the defendants asserted their hostile title or the plaintiff slept over the matter
despite the hostile assertion of title by the 1st defendant.

CRITICAL COMMENTS
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"Man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when
the roots have grown to a certain size, can't be displaced without cutting at his life.”4

 Jeffrey Evans Stake

Since the history of mankind property has been one of the fundamental elements of socio-
economic life of human beings.The term property being derived from Latin term
“Properietat” which means “One’s own”, laws and regulations were evolved from time to time,
for protection of the same.Oliver Wendell Holmes while discussing statutes of limitation and the
law of prescription, said “a thing which you have enjoyed and used as your own for a long time,
whether property or an opinion, takes root in your being and cannot be torn away without your
resenting the act and trying to defend yourself, however you came by it.” 5 This same human
behavior of defending or claiming of the enjoyment or rather ownership of property forms the
essence of the case in question as well.

In the case of Abraham Mathew & Others v/s Mariamma Yohannan, the single bench verdict can
be parted as: one dealing with the maintainability of the suit for mandatory injunction other
dealing with the issue of claim for adverse possession. The court commenced its judgement with
the brief detailing of the facts and moved on to the summarization of the submissions from both
the sides.

To settle down the first issue of maintainability of the of the suit for mandatory injunction, the
court primarily had to establish whether the defendant in the case, had a hostile possession
against the true owner as the license of the defendant was terminated by the true owner.For
considering the question, the court does a combined analysis of Section 52 of the Indian
Easement Act and Section 39 of the Specific Relief Act.After discussing the literal words of the
Sections, Court concludes that, licensee may be the actual occupant of the property and there
cannot be an element of animus possidendi and revocation of license correspondingly casts an
obligation on the licensee to vacate the property in obedience to the revocation of
permission.Thus court asserts the legislative sanction of the issuance of mandatory injunction
against the licensee to vacate the property in possession of licensee.But as the appellants submits

4
Letter from Oliver Wendell Holmes to William James (April 1 1907), in THE MIND AND FAITH OF JUSTICE
HOLMES : His SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS
5
Oliver Wendell Holmes, The Path of the law, 10 HAV.L.REV.457.476(1897)

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that the permissive possession being subsequently converted to a hostile possession after the
termination of license, Court scrutinizes the law in this field through the analysis of caselaws as
mentioned in submissions of respondents which calls for the fixation of a reasonable time for the
filing of the suit.

In the case of  Sant Lal Jain Vs. Avtar Singh6, the Supreme Court held that, Even if there was
some delay in filing the suit for mandatory injunction, this kind attempt should be made to avoid
multiplicity of suits and the licensor should not be driven to file another round of suit with all the
attendant delay, trouble and expense'.In the case of Joseph Severance Vs. Benny Mathew 7, it was
held 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 licence. The licensee may have to continue to be in occupation of the
premises for sometime to wind up the business, if any. In such a case the licensee cannot be
treated as a trespasser. It would depend upon the facts of the particular case. But there may be
cases where after termination or revocation of the licence the licensor does not take prompt
action to evict the licensee from the premises. In such an event the ex-licensee may be treated as
a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt
that there is a need for the licensor to be vigilant. A licensee's occupation does not become
hostile possession or the possession of a trespasser the moment the licence comes to an end. The
licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit
for mandatory injunction has been filed with a prayer to direct the licensee to vacate the
premises, the suit will be maintainable.”

Analysing the above cases, the court identifies the real test for maintainability of the suit for
mandatory injunction simpliciter requiring the defendants to vacate the property, where license
was terminated by licensee as whether on the expiry of licence the licensee has asserted his
hostile title and whether the licensor had slept over the matter despite the assertion of hostile title
made by the licensee, after the termination of licence.By applying the test to the facts of the case,
the court concludes that “ It cannot be held that the defendants asserted their hostile title or the
plaintiff slept over the matter despite the hostile assertion of title by the 1st defendant.”

6
(1985 (2) SCC 332
7
(2005(7) SCC 667

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Coming to the claim for adverse possession, court clearly says that  one cannot claim and plead
true ownership and right of the adverse possession at a time.As the appellant has claimed for
both the rights, court favours the arguments of the respondents and holds the pleadings of
appellants as mutually opposed and destructive, rendering both invalid and unsustainable.

Thus the Court can be said to be efficiently analysed both the issues involved in the case and
through cogent reasonings referring to the precedents has successfully established its findings.

CONCLUSION AND SUGGESTIONS

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Analysing the case, it can be concluded that a person, whose license has been terminated does
not immediately become a trespasser as there is no element of animus possedenti vested with
him.Thus, it is only when a licensor had an undue delay in filing a suit, the suit for mandatory
injuction to vacate the property becomes not maintainable.Otherwise, the court is clear that a suit
for mandatory injunction is maintainable for avoiding the multiplicity of suits as well.Court also
says that if the licensor was sleeping on the matter, the licensee become a trespasser who can
claim for hostile possession and suit for recovery of possession will be required.

The court is also clear on the claim for adverse possession as it says that the burden is heavy on
the licensee to prove that it has become adverse after the termination of licence and continued as
hostile against the true owner.Further the court also clarifies that a person who is claiming for
adverse possession cannot claim for ownership of the property simulataneously.Thus it can be
concluded that a mere possession does not result in converting the permissive possession to the
adverse possession without convincing evidence and the hypothesis can be fully proved.

Although it depends mostly on the facts of the case, the nature of the remedy sought by a
licensor in such cases should be of such a manner which can avoid multiplicity of the suits as
mentioned by the Court.The judicial trend seems to follow such a trend which would avoid
inconvenience to the petitioners and would reduce the pendency of cases.However clear
guidelines should be given by the court to determine the suits where facts are ambiguous and
unclear on the reasons of the delay for filing suits.

Property being one’s largest investment and savings, its protection in a just and fair manner is
always expected from the Judicial system.

BIBLIOGRAPHY
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PROVISIONS

 Section 39 of the Specific Relief Act, 1963,

CASELAWS

 Sant Lal Jain Vs. Avtar Singh (1985 (2) SCC 332),
 Joseph Severance Vs. Benny Mathew (2005(7) SCC 667
 Aspinwal & Co. Ltd. Vs. Soudamini Amma (1974 KLT 681)

BOOKS

Sanjeeva Row, Transfer of Property Act, (Vol. 1, edition, 2012, Universal Law Publishers) 561

Poonam Pradhan, Property Law (2nd Edition, 2013,  LexisNexis) 253.

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