IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 RSA.No. 887 of 2007() --------------------- AS.298/1992 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1001/1986 of PRL.MUNSIFF COURT,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF:- --------------------------------------------------- SUDHAKARAN S/O PADMANABHAN, PLOT NO.62,KALPAK NAGAR, HOUSING CLONY, CHACKAI, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS/RESPONDENTS/ADDL DEFENDANTS: --------------- 1. AYSHAKHAN, PLOT NO 63, KALPAKA NAGAR HOUSING COLONY, CHACKAI, THIRUVANANTHAPURAM, 2. A.REKHAKHAN, PLOT 63, KALPAKA NAGAR HOUSING COLONY, CHACKAI, THIRUVANANTHAPURAM. 3. A.ASSIF KHAN, PLOT NO.63, KALPAKA NAGAR, HOUSING COLONY, CHACKI, THIRUVANANTHAPURAM. ADV. SRI.G.S.REGHUNATH FOR R1-3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2010, ALONG WITH RSA NO. 893 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.Nos.887 & 893 of 2007 --------------------------------------- Dated this 05th day of February, 2010 JUDGMENT Dispute concerned alleged loss of privacy and construction of building by the adjoining landlord allegedly touching building of appellant/plaintiff. He filed O.S.No.1001 of 1986 in the court of learned Munsiff, Thiruvananthapuram seeking decree for prohibitory injunction against such construction. He also filed O.S.No.1689 of 2009 seeking a decree for mandatory injunction. Trial court dismissed the suits which was confirmed by the first appellate court and hence the second appeals at the instance of the plaintiffs urging by way of substantial questions of law whether exemption provided to defendant No.1 as per Ext.B2 has over riding effect over the prohibitory injunction and whether Ext.B2 violates the fundamental rights of the plaintiff. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Plaintiff, it is not disputed is the owner of an M-30 type building constructed in the housing colony belonging to defendant No.3 in O.S.No.1689 of 1985, the Kerala State Housing Board (for short, “the Board”). The Board constructed various types of residential buildings. Plaint A schedule is plot No.62 with M-30 type building allotted to the R.S.A.Nos.887 and 893 of 2007 2 plaintiff. Plaint B schedule is plot No.63 with M-30 type building allotted to defendant No.1. Thus, plaintiff and defendant No.1 are in possession of the plaint A and B schedules, respectively though ultimate ownership remained with the Board. Plaintiff alleged that allottees could not make any additions or alterations in the building and the property without previous written consent of the Board and that defendant No.1 is not entitled to put up constructions in the space in between plaint A and B schedules which affected privacy of plaintiff. In O.S.No.1689 of 1985 it is alleged by the plaintiff that construction of staircase touching the building in plaint A schedule resulted in additional weight for the building which that building cannot bear and would affect its stability. Hence the prayer for prohibitory and mandatory injunction. 3. Defendant No.2 in O.S.No.1689 of 1985 is the father-in-law of defendant No.1. They contended that plaintiff made construction in plaint A schedule in violation of terms of agreement with the Board. The mode of construction of M-30 type building is that wall of one building would serve as the wall of the adjoining building also and thus the common wall separates the buildings in plaint A and B schedules. It is incorrect to say that there is any space in between the two buildings as described in plaint B schedule. Defendant Nos. 1 and 2 have constructed the staircase in accordance with permission granted and the rules and regulations. They denied that privacy of the plaintiff R.S.A.Nos.887 and 893 of 2007 3 is infringed or that the staircase created additional weight on the building of plaintiff. 4. Ext.B2 is the order dated 31-07-1991 issued from the concerned department of Government regularizing construction made by defendant No.1 on payment of penalty. Plaintiff had challenged that order in this court in OP.10200 of 1991 but that challenge did not succeed. Thus so far as validity of Ext.B2 is concerned, there is a concluded decision by this court in the writ petition above stated and that decision is binding on plaintiff. Therefore that issue no more survives for consideration. Hence contention that defendant No.1 has constructed building in plaint B schedule in violation of Building Rules cannot stand. Exts.C1 and C3, reports of the Advocate Commissioner would show that construction in plaint B schedule has already been completed. Hence the prayer for prohibitory injunction cannot stand. So far as the allegation that privacy of plaintiff is affected is concerned, no acceptable evidence has been let in and courts below found against the plaintiff on the evidence on regard. It is not shown that any legal right of the plaintiff is infringed so that the civil court could issue an order of mandatory injunction. What remained is the contention of plaintiff that construction of staircase would result in additional weight on the building in plaint A schedule. Though plaintiff relied on Ext.C3, report of the Advocate Commissioner, courts below were not inclined to act upon Ext.C3 as the advocate commissioner has no sufficient R.S.A.Nos.887 and 893 of 2007 4 expertise to give opinion on such matters. Trial court has observed that the staircase is based on the ground, is constructed in a slanting position though it touches the wall of the building in plaint A schedule and that in the way the staircase is constructed, it would not give much weight on the building in plaint A schedule so that the court should interfere with the decree for mandatory injunction. The report of advocate commissioner in that regard who is not an expert was found not acceptable. It is in the above circumstances that prayer for mandatory injunction was disallowed. Courts below have on facts and evidence found concurrently against the plea raised by the plaintiff. As such no substantial question of law is involved in the second appeals requiring its admission. Accordingly the second appeals are dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/