IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 RSA.No. 425 of 2009() --------------------- AS.303/2006 of ADDL. DISTRICT COURT (SPECIAL), KOTTAYAM OS.87/2004 of PRL.M.C., KOTTAYAM .................... APPELLANT/RESPONDENT/DEFENDANT ---------------------------------------------------------- M.VARGHESE THOMAS, AGED 86 YEARS, PROPRIETOR, MEREENA HOTEL, KANJIKUZHY, MUTTAAMBALAM VILLAGE, KOTTAYAM TALUK AND RESIDING AT MALIAKAL HOUSE, VADAVATHOOR P.O., KOTTAYAM. BY ADV. SRI.MATHEW PHILIP EDAPPALLIL RESPONDENTS/APPELLANTS/PLAINTIFFS ---------------------------------------------- 1. KITTYMAY KURIAN, AGED 75, W/O. LATE P.K. KURIAN, RESIDING AT KOLATHUPARAMBIL AYA PUNNAPARAMBIL HOUSE, THEKKUMGOPURAM, KARAPUZHA KARA, KOTTAYAM VILLAGE, KOTTYAM TALUK. 2. SUNIL KURIAN, AGED 51, S/O. LATE P.K. KURIAN, RESIDING AT KOLATHUPARAMBILAYA PUNNAPARAMBIL HOUSE, THEKKUMGOPURAM,KARAPUZHA KARA, KOTTAYAM VILLAGE, KOTTAYAM TALUK AT PRESENT, RESIDING AT FLAT NO.11, SNEHA VIHAR 3. P.C. KURIAN @ ANIL, AGED 50, S/O. LATE P.K. KURIAN, RESIDING AT KOLATHUPARAMBILAYA PUNNAPARAMBIL HOUSE, THEKKUMGOPURAM, KARAPUZHA KARA, KOTTAYAM VILLAGE, KOTTAYAM TALUK. ADV. SRI.PHILIP T.VARGHESE FOR R2 SRI.THOMAS T.VARGHESE FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.425 of 2009 ---------------------------------------- Dated this the 5th day of August, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. No. 303 of 2006 before the Additional District Court(Special) Kottayam which arises from the judgment and decree in O.S. No.87/2004 on the file of the Principal Munsiff Court, Kottayam. The suit filed by the respondents herein for a permanent Prohibitory injunction, was dismissed by the trial court and reversed in appeal by the lower appellate court. Hence the Second Appeal. The parties herein after referred to as plaintiffs and defendants as arrayed in the suit. 2. The plaintiffs are the legal heirs of the landlord late Sri. P.K.Kurian and the defendant is the tenant. By executing a will Sri.P.K. Kurian bequeathed the plaint schedule property in favour of the plaintiffs. After the demise of the said Kurian the plaintiffs came into possession and ownership of the plaint schedule property. Knowing that the defendant is planning to modify the plaint schedule building by demolishing a portion of the same, the plaintiffs filed the suit for a permanent prohibitory injunction to restrain the defendant from demolishing, reconstructing or remodeling the plaint schedule building in any manner. 3. In the written statement it is contended by the defendant that he had taken the plaint schedule property on lease not from the deceased Sri. P.K.Kurian but from the said Kurian's mother, that the plaint schedule building R.S.A No. 425 of 2009 -2- was constructed by him and that he has spent about Rs..5,00,000/- for the repairs and reconstructions at different occasions. He also contended that he has every right to carryout any modification and to continue his business. 4. Before the trial court PW1, DW1 were examined and Exts. B1 to B6 , C1 and C1(a) were marked 5. The trial court examined the issues on the basis of the evidence. . After perusing Ext.C1 Commission report the trial court held that the apprehension of the plaintiffs that the defendant is making preparations to modify the building by demolition of a portion of the same is not correct and stands not proved, that the initial burden of proving such a case is on the plaintiffs, but it was not discharged by them. The trial court also held that there is nothing to prove the possession and title of the plaintiffs over the plaint schedule property, that since the defendant in his written statement admitted that the tenancy is with respect to the plaint schedule building and not with respect to the plaint schedule property, he cannot raise any dispute with respect to the title of the landlord. The trial court concluded that the plaintiffs are not the bonafide title holders of the plaint schedule property. Finding that the plaintiffs filed the suit on the above said apprehension and they have failed to prove the fact that they have the right to get a decree, the trial court declined the reliefs prayed for by them and dismissed the suit. 6. The dismissal of the suit for the aforesaid reasons by the trial court R.S.A No. 425 of 2009 -3- was challenged before the lower appellate court. The lower appellate court allowed the appeal and reversed the judgment and decree passed by the trial court and granted a decree of permanent prohibitory injunction restraining the defendant from demolishing ,re-constructing or remodelling the plaint schedule building or from putting up any additional structures in the plaint schedule property. The lower appellate court examined the reasons stated by the trial court for non- suiting the plaintiffs. The lower appellate court found that the property was originally owned by late Sri. P.K.Kurian and they are the bonafide title holders of the plaint schedule property. The lower appellate court held that since the plaintiffs are the bonafide title holders of the plaint schedule property, the defendant has no manner of right to demolish the building or remodel or reconstruct the same without the consent of the landlords(plaintiffs) , that the plaintiffs are undoubtedly the present landlords and hence they are entitled to bring a suit of this nature against unauthorised acts of a tenant like the defendant/appellant. The lower appellate also held that the learned Munsiff have approached the matter in a wrong perspective. 7. The reversal of the trial court's judgment and decree by the lower appellate court is on the basis of the same facts evidence and circumstances which were appreciated by the trial court. The admitted fact that the plaintiffs are the present land lords and the defendant is a tenant and that he had taken the building on rent from the predecessor in interest of the plaintiffs will conclusively proves that the plaintiffs have every right to get the injunction as R.S.A No. 425 of 2009 -4- prayed for in the suit. It is not correct to say the suit is not maintainable for reasons stated by the trial court. The facts circumstances and evidence shows that the plaintiffs' apprehension that the defendant/appellant may demolish, reconstruct or remodel the plaint schedule building is reasonable. The trial court has committed an error in not extending the reliefs prayed for by the plaintiffs The reversal of the trial court's decree and judgment by the lower appellate court is justifiable in law. Hence the decree and judgment passed by the lower appellate court are confirmed. I do not find any reasons to interfere with the findings of the lower appellate court by invoking this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this Second Appeal. This Second Appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 425 of 2009 ---------------------------- JUDGMENT 5th August, 2009