IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 RSA.No. 120 of 2010() --------------------- A.S.NO.59/2008 OF SUB JUDGE, ALAPPUZHA O.S.NO.593/2005 OF PRINCIPAL MUNSIFF, ALAPPUZHA. APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------- INDIAN BANK, MULLACKAL, ALAPPUZHA, REPRESENTED BY ITS MANAGER. BY ADV. SRI.S.EASWARAN RESPONDENT(S): RESPONDENT/PLAINTIFF: ----------------------------------- MULLACKAL DEVI KSHETHRAM, ALAPPUZHA, REPRESENTED BY THE SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.120 of 2010 -------------------------------------- Dated this the 1st day of March, 2010. JUDGMENT Second Appeal arises from judgment and decree of learned Sub Judge, Alappuzha in A.S.No.59 of 2008 confirming judgment and decree of learned Principal Munsiff, Alappuzha in O.S.No.593 of 2005. Respondent is a temple under the administration and management of the Travancore Devaswom Board (for short, “the Board”). The schedule building belonged to the respondent and was let out to the appellant, a nationalised bank as per a lease deed dated 20.11.2003 for five years with effect from 17.12.2000 which period expired on 17.12.2005. According to the respondent in violation of the terms and conditions of lease arrangement and without its consent appellant made alterations and modifications in the car park area which was not the subject matter of lease arrangement and installed an ATM there. Since appellant allegedly violated terms and conditions of the lease arrangement, respondent terminated the lease arrangement and sued for eviction of appellant in O.S.No.195 of 2006. O.S.No.593 of 2005 from which the present Second Appeal arises was instituted for a decree for prohibitory and mandatory injunction, the mandatory part of the relief being that appellant be directed to remove the ATM which was put up in the car porch and which according to the respondent was not the subject matter of the lease arrangement. Learned Munsiff dismissed O.S.No.195 of 2006 which is not under challenge. In O.S.No.593 of 2005 a decree for prohibitory and RSA No.120/2010 2 mandatory injunction was granted. That was confirmed by the first appellate court against which this Second Appeal is preferred raising by way of substantial question of law whether finding of the courts below that appellant is not entitled to put up the ATM in the leased premises is legally sustainable in the light of Ext.B1. Learned counsel for appellant has argued that even if it is found that the renewal lease deed did not take in the disputed area it is in evidence that appellant has been in possession and enjoyment of the said premises as well as a lessee and, hence when the appellant put up the ATM in the said premises, an implied grant could be spelt out. Learned counsel has placed reliance on the decision of the Supreme Court in Tulsi v. Paro (dead) (Smt.) ((1997) 2 SCC 706). 2. Ext.B1 is the registered lease deed dated 20.11.2003 period of which was fixed as five years which admittedly expired on 17.12.2005. As per orders of this Court (Exts.B2 and B3) there was a renewal of the lease for a further period of five years but under an unregistered agreement(which though produced in the trial court is not marked in evidence). It is not disputed by the appellant that though Ext.B1, registered lease deed dated 20.11.2003 took in the disputed car porch area also the renewal lease deed did not take in the said area. This is admitted by the appellant in the written statement. According to the appellant at the time of renewal it did not come to the notice of the appellant that car porch area was not included in the renewal lease deed. It is contended RSA No.120/2010 3 that due to an inadvertent typographical error the car porch area was not included in the renewal lease deed. It is an admitted fact that the car porch area was not included in the renewal lease deed which itself was not registered notwithstanding that the period of lease fixed thereby was five years. Hence as a lessee appellant could not claim right over the disputed car porch as rightly found by the courts below. Decision relied on by the learned counsel for appellant cannot apply to the facts of the case. That was a case where there was no written agreement of lease. In this case admittedly there is a renewal lease deed but it did not take in the disputed car porch. Hence I do not find anything illegal or irregular in the courts below taking the view that appellant cannot have any right in the disputed car porch area. 3. It is submitted by learned counsel for appellant that the ATM has already been removed from the disputed area. So far as order of prohibitory injunction is concerned, it is only against trespassing into the plaint schedule building and carrying out any work for the purpose of installation of ATM. I do not find any substantial question of law involved in the Second Appeal requiring its admission. 4. Learned counsel submits that the decree may not stand in the way of the parties entering into a fresh lease deed and since according to the learned counsel the period of present lease arrangement would expire in the year 2010. RSA No.120/2010 4 I make it clear that the decree will not bar the parties if they choose so, to enter into a fresh lease deed as they may agree between them and as provided under law. With the above observation this Second Appeal is dismissed in limine. I.A.No.284 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks