IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 RSA.No. 1067 of 2004 ----------------------------------- OS.219/1996 of PRL.M.C.,KOZHIKODE-II AS.122/2001 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/RESPONDENT/DEFENDANT: ALAKKAL SURENDRAN,S/O. ARAKKAL APPU, NADUVATTOM AMSOM DESOM, KOZHIKODE. (DIED) LRs IMPLEADED. 2. VINODINI.A., W/O LATE ARAKKAL SURENDRAN, ALAKKAL HOUSE, PUZHIKKUNNU PARAMBU, P.O.KALLAYI, KANNANCHERRY, KOZHIKODE DIST. 3. THULASI.A., D/O LATE ARAKKAL SURENDRAN, DO. DO. DO. 4. SANDHYA.A. DO. DO. DO. 5. SURYA.A., DO. DO. DO. Impleaded as per order dated 8.10.2010 in IA 2301/2010 BY ADV. SRI.P.K.RAVIKRISHNAN RESPONDENT/APPELLANT/PLAINTIFF: NADUVETTIL BALAN, S/O. APPU, PANIYANKARA AMSOM DESOM, KOZHIKODE. BY ADV. SRI.A.BALAGOPALAN SRI.K.C.CHARLES SRI.K.SANEESH KUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ---------------------------------------- R.S.A.No.1067 of 2004 ---------------------------------------- JUDGMENT The dispute centres around plaint C schedule property. According to the respondent/plaintiff, plaint C schedule property does not form part of the leasehold property obtained under Exhibit A2 by the appellant. Appellant would contend that it also forms part of Exhibit A2 lease. Admittedly, R.C.P.No.59/1996 was filed by the respondent seeking eviction of the appellant from the leasehold property. That rent control petition was dismissed. R.C.A.No.8/1999 was filed challenging that order. It is the admitted case that an order under Section 11(4)(iv) of Kerala Buildings (Lease and Rent Control) Act was passed. That was challenged before this Court in C.R.P.No.2939/2001. That revision was also dismissed. It is also the admitted case that delivery of plaint B schedule building was taken in execution of the order of eviction. As per the order passed by the Appellate Authority, as confirmed by this Court, respondent is bound to re- construct the building and put the appellant in possession of one of the rooms in lieu of the room from which he was evicted. RSA 1067/04 2 Learned counsel appearing for the respondent submitted that as appellant is clinging on to the possession of plaint C schedule property, the lean to, respondent could not re-construct the building. Learned counsel appearing for the appellant submitted that in spite of the order of re-construction, the building is not re-constructed. 2. Though trial court dismissed the suit, first appellate court granted a decree for recovery of possession of plaint C schedule property. Second appeal was admitted on the following substantial question of law: Whether, on the facts and circumstances of the case, the finding of the lower appellate court that appellant is in occupation of 'C' schedule building ignoring the finding of the trial court based on the Commissioner's report and plan that there is no 'C' schedule property as stated in the plaint? 3. Case of the appellant is that plaint C schedule property forms part of the leasehold property obtained under Exhibit A2. When it is the admitted case that lease was terminated and respondent got an order of eviction of the appellant from the lease hold property, appellant cannot cling on to his possession over plaint C schedule property, as, according to him, it is part of RSA 1067/04 3 the leasehold property. There is no dispute that there is a leanto towards east of the tenanted building. It is the property which is sought to be recovered by instituting the suit in this case. As found earlier, the only case of the appellant is that plaint C schedule property, the lean to, is part of the building obtained on rent under Exhibit A2. An order of eviction was passed under Section 11(4)(iv) of Kerala Buildings (Lease and Rent Control) Act. Hence, I find no reason to interfere with the finding of the first appellate court. It is for the respondent to complete the re- construction of the building as directed by the appellate authority on getting possession of plaint C schedule property. Appeal is disposed. 22nd February, 2011 (M.Sasidharan Nambiar, Judge) tkv