IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 AS.No. 388 of 1996() ------------------------------ OS.175/1993 of SUB COURT, KASARAGOD .................... APPELLANT(S): PLAINTIFFS ---------------------------------------- 1. SMT.NANDINI SHENOY, RESIDING AT HOSABATTU VILLAGE, MANJESHWARA, KASARAGOD TALUK. 2. KUM.SUMANA, DO. DO. 3. ASHWIN, DO. DO. 4. RESHMI, DO. DO. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. P.VENKATESH SHENOY, MERCHANT, M/S. SADANANDA TRADER, CROSS ROAD BAMDER, MANGALORE 1. 2. NIRMALA V. BALIGA, HOSABATTU VILLAGE, MANJESHWARA , KASARAGOD TALUK. 3. ANIL DO. DO. BY ADVS. SRI.T.L.ANANTHASIVAN, SRI.SILVI MATHEW THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 388 OF 1996 = = = = = = = = = = = = = = = Dated this the 16th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kasaragod in O.S.175/93. The suit is one for realisation of a sum of Rs.67,200/- with future interest and costs. It is the case of the plaintiffs that the first defendant was a tenant of the building with a stipulation to pay monthly rent of Rs.300/-. While he was in occupation he converted the building into a godown which was objected by the plaintiffs and defendants 2 and 3. There upon the first defendant entered into an agreement, Ext.A1 undertaking to restore the building to its original condition at the time of surrender or in the alternative to pay Rs.50,000/- by way of A.S. 388 OF 1996 -2- damages. R.C.P.21/91 was filed and first defendant surrendered the building. The first defendant at the time of surrender did not restore the building nor did pay any damages hence the suit for recovery of damages due under the agreement. 2. The first defendant would contend that the building was obtained for being used as a godown. The first defendant paid Rs.25,000/- to the 2nd defendant and certain alteration work carried out with her implied consent. The first defendant did not execute any agreement. It is also contended that the building was surrendered without any liability. 3. The trial Court on an exhaustive consideration of the materials held that Ext.A1 is a genuine document but held that since the plaintiffs have sold the property to one Abdul A.S. 388 OF 1996 -3- Khader Haji prior to the suit and as it had been done without reserving the right, there is a waiver and therefore the plaintiff and defendants 2 and 3 are not entitled to claim relief. It is against that the plaintiffs have come up in appeal. 4. Now, so far as the right to immovable property is concerned when a property is transferred all the rights attached to the property runs with the land but here is a case where admittedly the first defendant was a tenant of the property. He had executed Ext.A1 agreement undertaking to put the building back to its original position or pay Rs.50,000/- as damages. So it is an independent contract entered into by defendants with the plaintiffs regarding the restoration of the building into its original position. Subsequently a rent A.S. 388 OF 1996 -4- control petition was filed and it was surrendered and there is no case for the first defendant that at any point of time he has converted the building into its original position. 5. The defence is that of a total denial of the execution of the agreement. He has also not raised the contention that the plaintiffs have lost their right by virtue of the transfer of the property in favour of Abdul Khader Haji. I feel the court below was not right in holding that there is waiver. The building as on condition was the subject matter of the assignment. Consideration was fixed for the said thing and property was transferred. There is no recital in the document in relation to transferring right to get damages under Ext.A1. Secondly this right to recover damages, under A.S. 388 OF 1996 -5- ordinary circumstances, is not a right running with the property. It is only on account of the damages caused to the property an agreement was entered into. So unless there is a specific recital transferring that right also in favour of the transferree, the transferree shall not get that right. Therefore since it is not a right running with the land the plaintiffs are entitled to maintain a suit for damages. The trial court having found that Ext.A1 as genuine, was bound to grant a decree in favour of the plaintiffs and not to dismiss the suit. Therefore the judgment and decree of the trial Court are set aside, appeal is allowed and the plaintiffs are given a decree for realisation of a sum of Rs.50,000/- with 6% interest on the said sum from 21.10.91 till realisation from the first defendant with costs. The plaintiffs are A.S. 388 OF 1996 -6- directed to bear their costs in this appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. 388 OF 1996 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 388 OF 1996 = = = = = = = = = = = J U D G M E N T 16th July, 2010.