IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 RSA.No. 245 of 2008() --------------------- AS.2/2006 of DISTRICT COURT, KOTTAYAM OS.318/2002 of MUNSIFF COURT, CHANGANACHERRY .................... : APPELLANT/RESPONDENT/PLAINTIFF: ------------------------------------------------ T.C. VASU, SON OF SANKARAN, THIYYANIL HOUSE, HOUSE NO.567 OF WARD NO.IX, VAKATHANAM PANCHAYATH, THOTTAKAD KARA -DO- VILLAGE THOTTAKKADU P.O., CHANGANACHERRY TALUK. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS: APPELLANT/DEFENDANT: --------------------------------------------- T.K. MADHAVAN, S/O. KADUTHA, THIYYANIL HOUSE, THOTTAKKAD P.O., -DO- KARA, -DO- VILLAGE, CHANGANACHERRY TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.636/2008 IN R.S.A. NO.245/2008 27.3.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 245 OF 2008 =========================== Dated this the 27th day of March, 2008 JUDGMENT Plaintiff in O.S.318/2002 on the file of Munsiff Court, Changanacherry is the appellant. Defendant is the respondent. Appellant admittedly married the daughter of respondent and subsequent to the retirement of appellant from service he is residing in the plaint schedule building. The wife of the appellant Devayani committed suicide on 4.3.01. Appellant thereafter married another lady and is residing in the building along with the child his first marriage. Appellant instituted the suit seeking a decree for injunction restraining respondent from forcibly evicting him contending that he has been in possession of the building. Respondent admitted that appellant is also residing in the building. It was contended that respondent is not attempting to forcibly evict the appellant and respondent is also entitled R.S.A.245/08 2 to reside in the building and appellant is not entitled to cause any obstruction for the residence of the respondent and as the respondent is not attempting to evict him by force, suit is not maintainable. 2. Learned Munsiff on the evidence of Pws.1 to 5, Exts.A1 to A7, C1 and C1(a) granted a decree finding that though building belongs to respondent, appellant is residing in the building and respondent is not entitled to forcibly dispossess the appellant. Respondent challenged the judgment before District Court, Kottayam in A.S.2/2006. Learned District Judge on reappreciation of evidence found that though appellant contended that plaint schedule property was given to him, there is no evidence and it is admitted case that property stands in the name of respondent. Eventhough it was contended by the appellant that he had modified the building, it was found by the learned District Judge that it will not enable appellant to claim the building and at R.S.A.245/08 3 best he could claim the money due to him. Learned District Judge also found that appellant was not permitting respondent to reside in the building and therefore there was a mediation at the instance of local SNDP authorities and Ext.A7 settlement was arrived at on 8.4.01 which was signed by the appellant and respondent and under Ext.A7 appellant agreed not to cause any disturbance to the residence of the respondent. So also respondent also agreed not to cause any obstruction to the residence of the appellant and his mentally retarded child. Learned District Judge also found that it is admitted case that subsequently respondent instituted O.S.217/06 before Munsiff Court for recovery of possession of the building and in such circumstance when under Ext.A7 respondent admitted not to cause disturbance to the residence of appellant and a suit for recovery of possession was filed, decree granted by the trial court is not sustainable. The appeal was allowed and suit was dismissed. It is challenged in the R.S.A.245/08 4 second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that when it is admitted that appellant is residing in the building along with the child and his second wife, first appellate court should not have interfered with the decree for injunction granted against respondent from forcibly evicting the appellant. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. As rightly found by the first appellate court, plaint schedule property belongs to the respondent. Ext.A7 settlement was arrived at in the mediation by appellant and respondent and signed by both. It establish that respondent had undertaken not to cause any disturbance to the residence of the appellant. True, respondent is not entitled to forcibly evict appellant from the R.S.A.245/08 5 building. But it is the very case of the respondent that he never attempted to forcibly evict the appellant. That fact is established by the institution of O.S.217/06 before Munsiff Court seeking a decree for recovery of possession. When respondent has already instituted a suit for recovery of possession, admitting possession of the building by appellant, as rightly found by first appellate court, appellant is not entitled to a decree for injunction from forcible eviction. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006