IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 SA.No. 275 of 2001() -------------------- AS.128/1998 of PRL.SUB COURT, KOZHIKODE OS.438/1997 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANT: APPELLANT IN 1ST APPEAL AND DEFENDANT IN THE SUIT: ------------------------------------------------------------------------------------------------------------ S.K.SYED UMMER SAHIB, AGED 53 YEARS, S/O.HUZAIN SAHIB, RESIDING AT NAGARAM AMSOM DESOM OF KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT:RESPONDENT IN APPEAL AND PLAINTIFF IN SUIT: ------------------------------------------------------------------------------------------------- SHABANDRI REAL ESTATE LTD., REPRESENTED BY ITS EXECUTIVE DIRECTOR, MOHAMMED YOONUS SHABANDRI, S/O.S.ISMAIL SAHIB, AGED 38 YEARS, RESIDING AT PANNIANKARA AMSOM DESOM OF KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 275 OF 2001 =========================== Dated this the 1st day of April, 2007 JUDGMENT Defendant in O.S.438/1997 on the file of Munsiff Court, Kozhikode who is the tenant under respondent plaintiff is the appellant. Plaint schedule building admittedly belongs to respondent. It originally belonged to M/s.S.H. Badashah Sahib and was obtained by S.K.Syed Hussain Sahib, the father of appellant as per an oral lease fifty years back. Respondent Company purchased the property in 1994. Appellant later attorned to this respondent. The suit was instituted for a permanent prohibitory injunction restraining appellant from altering or changing the nature and character of plaint schedule property. It was contended that the building was obtained for conducting hotel business and appellant is conducting a hotel in the name Lucky Restaurant and appellant is making alterations to conduct a textile shop therein and S.A.275/2001 2 appellant is not entitled to carry out any alteration so as to reduce the value and utility of the building. It is on that ground a decree for injunction was sought for. Appellant resisted the suit contending that for convenience of starting the hotel business father of appellant had made some arrangement and in 1952 his father started a stationery business also in the plaint schedule property and appellant started a textile business by name Lucky Collections in the plaint schedule building and for that purpose no material alteration so as to reduce its value and utility was effected and there is no intention to effect any material alteration and therefore suit is to be dismissed. 2. No oral evidence was adduced. Evidence consist of Ext.A1 assignment deed obtained by respondent from the previous owner and Ext.A2 building tax receipt and Ext.C1 report and C2 plan submitted by the Commissioner. Learned Munsiff relying on Ext.C1 found that appellant has effected some alterations. Holding that respondent is entitled to prevent any alteration, which would S.A.275/2001 3 reduce the value and utility of the building found that respondent is entitled to the decree for injunction. A decree was granted restraining appellant from altering or changing the nature and character of the plaint schedule property in any manner and also from transferring possession of the premises to others. Appellant challenged the judgment before Sub Court, Kozhikode in A.S.128/1998. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Though the appeal was admitted on 20.3.2001, no substantial question of law was formulated. 4. Learned counsel appearing for appellant and respondent were heard. 5. The argument of learned counsel appearing for appellant is that the original lease was admittedly an oral lease and there was no restriction to use it only for hotel business and even if the building was obtained for conducting a hotel business appellant is entitled to change the S.A.275/2001 4 business into textile business and on that ground respondent is not entitled to a decree for injunction. It was also argued that eventhough appellant specifically contended that he did not effect any material alteration reducing the value and utility of the building, appellant did not adduce any evidence and courts below should not have relied on Ext.C1 report and C2 plan without examining the advocate Commissioner. It was argued that courts below wrongly found that appellant has effected alterations reducing the value and utility of the building and that finding of the trial court without proper evidence is unsustainable. Learned counsel also argued that eventhough Ext.C1 report does not establish that the value and utility of the building was reduced by making alterations trial court found it otherwise and it is unsupported by any evidence and therefore findings of the trial court on that aspect is unsustainable. Learned counsel also argued that when appellant specifically pleaded that he has no intention to effect any alteration, without at least the oral evidence of the S.A.275/2001 5 plaintiff, courts below should not have granted the decree. Learned counsel appearing for respondent submitted that Ext.C1 report establish that appellant had effected certain modifications and alterations in the plaint schedule building and he had not obtain any sanction from the Accommodation Controller and being a tenant, appellant is not entitled to effect any alteration to the building and the decree granted is perfectly correct. 6. On going through the judgments of the courts below, I do not find that any substantial question of law is involved in the appeal. 7. Appellant is admittedly the tenant of the plaint schedule building. Appellant is not entitled to effect any material alteration of the building so as to reduce the value and utility of the building. That does not mean that appellant is not entitled to effect even minor alterations, which do not reduce the value and utility of the building. The decree granted by the trial court which was confirmed by the first appellate court is only to the effect that appellant is not entitled to alter or change the nature and character of the S.A.275/2001 6 plaint schedule property in any manner. When Ext.C1 report shows that some modifications were already made the decree granted will not effect the said modifications already effected. Though it was contended that Ext.C1 and C2 should not have been relied on without examining the Commissioner on the ground that Exts.C1 and C2 were ex parte report and plan, the report establish that inspections was with notice to the appellant. Appellant was also present at the time of inspection. In such circumstances, it cannot be said that they were exparte report and plan. Even without the examination of the Commissioner, Exts.C1 and C2 can be admitted in evidence and can also be relied on. Ext.C1 and C2 establish that even before the inspection of the Commissioner, alterations were effected. Hence based on the decree respondent cannot be contended that those alterations were effected later. 8. Appellant has no grievance against the decree restraining him transferring possession of the premises to others. In such circumstance, I do not find it necessary to modify the decree S.A.275/2001 7 restraining appellant from further changing the nature and character of the plaint schedule property. But it is clarified that the decree will not affect the right of the appellant to do the business of his choice in the plaint schedule building. 9. There is force in the submission of learned counsel appearing for appellant that finding of the trial court with regard to the alterations was necessary. According to trial court alterations made amount to reduction of the value and utility of the building. That finding is without any evidence. Ext.C1 and C2 do not establish that fact. There was no other evidence. In the absence of evidence, trial court should not have found that value and utility of the building was reduced by the alterations. Moreover, in the nature of the suit, that finding was unnecessary. In such circumstance, the finding of the trial court that the material alterations reduced the value and utility of the building is expunged. 10. Learned counsel appearing for appellant submitted that appellant had claimed benefit under S.A.275/2001 8 section 106 of the Kerala Land Reforms Act by filing an additional written statement which was not considered by the courts below. In this suit, question whether appellant is entitled to the protection of Section 106 of Kerala Land Reforms Act is not at all relevant. In such circumstance, appellant is at liberty to raise the claim in appropriate proceedings. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.NO.275 /01 --------------------- JUDGMENT 1ST, APRIL, 2007