IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 RSA.No. 1129 of 2009() ---------------------- AS.119/2004 of DISTRICT COURT, THRISSUR OS.915/1995 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------------- 1. JOSE, AGED 54 YEARS, S/O.THEKKEKARA NJALIL ANTHONY, PUTHUSSERY DESOM, CHEMMANTHATTA VILLAGE, TALAPPILLY TALUK. 2. SALEENA, AGED 50 YEARS,W/O.THEKKEKARA FRANCIS @ ROBY, PUTHUSSERY DESOM, CHEMMANTHATTA VILLAGE, TALAPPILLY TALUK, REP. BY HER HUSBAND & POWER OF ATTORNEY HOLDER FRANCIS @ ROBY, AGED 65 RETIRED SCHOOL MASTER S/O.THEKKEKARA CHUMMAR, PUTHUSSERY DESOM, CHEMMANTHATTA VILLAGE,TALAPPILLY BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P RESPONDENT(S): RESPONDENTS/DEFENDANTS -------------------------------------------- 1. KURIAPPAN, AGED 73 YEARS, S/O.CHERUVATHOOR THAVU, KUNNAMKULAM VILLAGE, MANJERI PARAYIL ANGADIYIL, WADAKKANCHERY ROAD, TALAPPILLY TALUK (DIED). 2. CHIRIYAKKU, S/O.THEKKEKARA VAREED, AGED 78 YEARS, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK. 3. WILLIAMS, AGED 48 YEARS, S/O.CHIRIYAKKU, THEKKEKARA HOUSE, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK. 4. MOHANAN, AGED 45 YEARS, S/O.CHIRIYAKKU, THEKKEKARA HOUSE, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK. RSA NO.1129/2009 2 5. THOMAS, AGED 42 YEARS, S/O.CHIRIYAKKU, THEKKEKARA HOUSE, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK. 6. EDISON, AGED 39 YEARS, S/O.CHIRIYAKKU, THEKKEKARA HOUSE, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK. 7. JISON, AGED 37 YEARS, S/O.CHIRIYAKKU, THEKKEKARA HOUSE, CHOWANNUR VILLAGE, DESOM, TALAPPILLY TALUK. 8. DAVIS, S/O.LATE KURIAPPAN, KANIYAMPAL DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK. 9. VARGHESE, S/O.LATE KURIAPPAN, RESIDING AT CHERUVATHOOR HOUSE, WADAKKANCHERY ROAD, KUNNAMKULAM DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK. 10. AMMU, D/O.LATE KURIAPPAN, RESIDING AT CHERUVATHOOR HOUSE, WADAKKANCHERY ROAD, KUNNAMKULAM DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK. 11. THOMAS, S/O.LATE KURIAPPAN, RESIDING AT CHERUVATHOOR HOUSE, WADAKKANCHERY ROAD, KUNNAMKULAM DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1129 of 2009 -------------------------------------- Dated this the 19th day of November, 2009. JUDGMENT The Second Appeal arises from judgment and decree of learned District Judge, Thrissur in A.S.No.119 of 2004 confirming dismissal of O.S.No.915 of 1995 by learned II Additional Sub Judge, Thrissur. That was a suit filed by the appellants on 24.7.1995 seeking injunction against the respondents trespassing into the schedule room. Appellants claimed that under a rental arrangement with respondent No.1, they have been in possession of the said room and continued to be so on the date of suit. They claimed that the shoproom was used for their hardware business (conducted elsewhere) and when they stopped the business, they used the said shoproom to keep hardware items valued around Rs.10,000/-. Alleging trespass in to the said shoproom by the respondents, appellants filed the suit for decree for prohibitory injunction. Respondents contended that though there was a tenancy in favour of appellants in respect of the shoproom it was surrendered in favour of respondent No.1 in February, 1995 followed by respondent No.1 entrusting the said room to respondent No.2 as per Ext.B2, rent deed dated 1.7.1995. In the meantime there was an attempt on the part of appellants to amend the plaint alleging that after institution of the suit respondents trespassed into the schedule room and dispossessed him. Learned Sub Judge was not impressed by that application and dismissed the same. Learned Sub Judge after consideration of the RSA No.1129/2009 2 evidence held that appellant was not able to prove his case either by documentary or oral evidence and non-suited him. Learned District Judge confirmed judgment and decree of the trial court. Hence this Second Appeal. Substantial questions of law urged before me is whether dismissal of I.A.No.4903 of 1996 (for amendment of plaint) by the trial court on the ground that amendment if allowed would change the character and nature of the suit is legal and proper and whether finding of the courts below that appellants had no possession of the suit property is not legally sustainable. Learned counsel for appellants stressing the above point contended that courts below ought to have considered the documents and that even the report of the advocate commissioner revealed that as per the records respondent No.2 started his business in the scheduled room from 17.8.1995 onwards. 2. That there was tenancy in favour of appellants in respect of the shoproom is not disputed by the respondents. Even according to the appellants they used the said shoproom for keeping hardware items and when they stopped the business the hardware items were kept in the room. It is not disputed that business was stopped much prior to the institution of the suit. Exts.A1 and A2 are produced by the appellants to show that they are in possession of the shoproom on the date of suit. Respondent No.1, to evict another tenant from the adjoining room filed R.C.P.No.14 of 1991 in the court of learned Rent Controller, Thrissur and gave evidence as PW1 in that case. Ext.A1 is the certified copy of deposition of PW1 in that case given on 5.1.1995. In Ext.A1, RSA No.1129/2009 3 respondent No.1 stated that he has no other room in his possession in that building (as on 5.1.1995). Ext.A2 is the certified copy of memorandum of appeal preferred against dismissal of R.C.P.No.14 of 1991 where also respondent No.1 contended that he has no other room in his possession in the building where the shoproom is situated. Contention advanced by learned counsel is that Exts.A1 and A2 would reveal that respondent No.1 was not having possession of the shoproom on the date of the present suit as contended by him. 3. Courts below found that Exts.A1 and A2 cannot help the appellants. The reason is that according to the respondents surrender of tenancy of the shoproom was in February, 1995 while Ext.A1, deposition was given by respondent No.1 prior to that on 5.1.1995. On that day he was justified in deposing that he had no other room in the same building in his possession. So far as Ext.A2, memorandum of appeal in R.C.A.No.29 of 1995 is concerned, that was preferred on 27.5.1995 much after the alleged surrender of the shoproom in favour of respondent No.1 in February, 1995. That was explained by DW1, respondent No.1 stating that his counsel at the time of preferring the appeal memorandum just carried over what was stated in R.C.P.No.14 of 1991 filed much before the alleged surrender of the room by the appellants in his favour in February, 1995. That explanation was accepted by the courts below on the facts and evidence. 4. Now I shall come to the report of advocate commissioner. Commissioner inspected the scheduled room on 9.12.1995 and stated that as RSA No.1129/2009 4 per the records respondent No.2 started business in the said room from 17.8.1995 onwards ( Ext.B1, rent deed executed by respondent No.2 in favour of respondent No.1 is dated 1.7.1995). I do not find anything strange in that the rent deed is dated 1.7.1995 and respondent No.2 started business only on 17.8.1995. It is relevant to note that appellants who claimed possession of the shoproom on the date of institution of suit did not then take out a commission. Apart from that, appellants did not prefer any complaint before the police regarding the alleged trespass into the scheduled shoproom and loss of hardware items kept therein. It is also pertinent to note that appellants did not produce any evidence to show that hardware items worth about Rs.10,000/- had been kept in the shoproom even on the date of institution of suit. They could have proved that taking out a commission. Courts below observed that if the hardware items kept in the shoproom were removed by the respondents, in the normal course appellants would have preferred a complaint against them before the police. It is in these circumstances courts below refused to find in favour of appellants. That finding rest on proper appreciation of the evidence and cannot said to be perverse. Hence no substantial question of law is involved. 5. So far as dismissal of I.A.No.4903 of 1996 for amendment of the plaint to recover possession of the property is concerned, evidence did not reveal that appellants had possession of the shoproom on the date of institution of suit. It is not the case of appellants that they lost possession of the shoproom prior to the institution of suit. In such situation, dismissal of I.A.No.4903 of 1996 cannot be said to be illegal. On going through the RSA No.1129/2009 5 judgments under challenge and hearing learned counsel for appellants I do not find any substantial question of law involved in this Second Appeal requiring its admission and issue of notice to the respondents. The Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks