IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 RSA.No. 896 of 2008() --------------------- AS.378/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.363/1994 of III ADDL.M.C.EKM (RENT CONTROL) .................... APPELLANT/APPELLANT/PLAINTIFF NO.2 ------------------------------------------------------ MARTHA, W/O.FRANCIS, RESIDING AT HOUSE NO.40/4324, CHAKKATTIL HOUSE, MARKET ROAD, COCHIN.31. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT/ RESPONDENT/ DEFENDANT ------------------------------------ GEORGE, S/O.LATE JOSEPH @ PAPPU, RESIDING AT HOUSE NO.40/4324, CHAKKATTIL HOUSE, MARKET ROAD, COCHIN 31. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 896 of 2008 ---------------------------------------- Dated this the 10th day of June, 2009 JUDGMENT The 2nd plaintiff in O.S. No. 363/1994 on the file of the III Additional Munsiff Court, Ernakulam is the appellant herein. The Second Appeal is directed against the judgment and decree in A.S. 378 of 2006 on the file of the VIth Additional District Court Ernakulam . The suit filed by the plaintiffs for permanent prohibitory injunction was dismissed by the trial court and confirmed in appeal by the lower appellate court. Hence this second appeal. The parties herein after referred to as the plaintiff and defendant as arrayed in the suit. Pending suit the original plaintiff died and the appellant herein is impleaded as additional 2nd plaintiff in the suit. 2. It is the plaintiffs' case that the he was a kudikidappukaran and owner in possession of his kudikidappu building and that he was entitled to purchase 3 Cents of land around the said kudikidappu building . The defendant is the son of original plaintiff's brother Joseph.. It is further pleaded by the original plaintiff that he accommodated the defendant temporarily in a portion of the his kudikidappu building and the permission so given is a licence and that the defendant is liable to vacate the premises as and when demanded by him. In the meanwhile the original plaintiff was allowed to purchase 3 Cents of land as per order in O.A. No. 160/1991 of the Land Tribunal. Accordingly , Purchase Certificate was R.S.A. No. 896 of 2008 -2- issued in favour of original plaintiff on the basis of the consent given by the owner of the land. Knowing the above said fact the defendant filed an appeal as LRAs 35/1992 before the Appellate Authority challenging the assignment order issued in favour of the original plaintiff. The Appellate Authority remitted the case to the Land Tribunal directing denovo enquiry and the Original Application is now pending consideration before the Land Tribunal The original plaintiff contended that the defendant has no manner of right, title or possession over any portion of the plaint schedule property. Hence the original plaintiff filed the said suit for permanent prohibitory injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the plaint schedule property. 3. In the written statement filed by the defendant it was interalia contended that the original plaintiff was not the owner or in possession of the kudikidappu building and that he was not entitled to purchase the 3 Cents around the kudikidappu building. According to the defendant he and the original plaintiff are jointly entitled to get the 3 cents of property as kudikidappu. 4. The trial court rightly noted that the dispute is between two persons who were raising rival claims over the plaint schedule property as kudikidappukars The trial court also noted that defendant was occupying a portion of the plaint schedule building, at the same time the defendant has not challenged or denied the plaintiff's occupation over a portion of R.S.A. No. 896 of 2008 -3- the plaint schedule building. Since both parties were occupying portions of the kudikidappu building, the trial court rightly held that the plaintiff cannot maintain a suit for ejecting the defendant from the plaint schedule property by a mandatory injunction, especially when the Purchase Certificate issued by the Land Tribunal was set aside by the Appellate Authority and remanded back to the Land Tribunal for denovo enquiry which was pending consideration . The trial court also held that when the defendant was in possession of the plaint schedule property the original plaintiff cannot seek a prohibitory injunction against the defendant. The lower appellate court also considered the contentions of the parties and held that since the original plaintiff has failed to prove that the he was the absolute owner in possession and enjoyment of the plaint schedule property as per the purchase certificate issued in his favour and he permitted the defendant to occupy the building he was not entitled to any relief as prayed for. The lower appellate court also concurred with the trial court's view. 5. In the given circumstances the learned counsel for the plaintiff/ appellant submitted that the landlord filed a suit as O.S. 1056/1990 for fixation of the boundary. The dismissal of this R.S.A. is not a bar for raising all the contentions available to the respective parties in the said suit. It is also made clear that the respective rights of the plaintiff and the defendant for kudikidappu is subject to the final order to be R.S.A. No. 896 of 2008 -4- passed by the Land Tribunal. I find no reasons to interfere with the concurrent findings entered by the courts below The courts below have rightly adjudicated the issues on the basis of available facts, circumstances and evidence. No question of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 896 of 2008 ---------------------------- JUDGMENT 10th June, 2009