IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 RSA.No. 326 of 2009 --------------------------------- AS.3/2008 of SUB COURT, MANJERI OS.121/2002 of MUNI-MAGI.COURT, PERINTHALMANNA .................... APPELLANT/APPELLANT/DEFENDANT: PONNATHUMKAVIL IBRAHIM, S/O.ALAVI, ERAVIMANGALAM AMSOM AMD DESOM, PERINTHALMANNA TALUK. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENT/RESPONDENT/PLAINTIFF: MUHAMMEDALI, S/O.PONNATHUMKAVIL IBRAHIM, ERAVIMANGALAM AMSOM AND DESOM, PERINTHALMANNA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.326 of 2009 -------------------------- JUDGMENT Heard counsel for the appellant. 2. Though vehement arguments were advanced by the counsel for the appellant to have this Regular Second Appeal admitted, I am not of the view that there is any merit in this Regular Second Appeal filed against the concurrent verdicts passed by the courts below. Appellant/defendant is none other than the father of the respondent/plaintiff. Admittedly, the scheduled shop room belongs to the respondent/plaintiff, he having purchased it under Exhibit A1 assignment deed. Counsel for the appellant/ defendant submits that after purchase of the scheduled shop room, the respondent/plaintiff had gone abroad and the appellant/defendant was in occupation of the scheduled shop room for conducting a barber shop and that without a prayer for recovery of possession the respondent/plaintiff RSA 326/09 2 cannot get a decree of mandatory injunction directing the appellant/defendant to put the respondent/plaintiff in possession of the schedule building, which is only a shop room. 3. When the appellant/defendant is put in possession of the scheduled shop room by the respondent/plaintiff while going abroad and on his return he asked for vacant possession of the scheduled shop room for him to conduct a barber shop, the appellant/defendant, who is running a barber shop therein, cannot retain possession of the scheduled shop room and resist eviction and it is not a case wherein he is having any right in the scheduled shop room, except that he is in occupation by virtue of the permission given by his son, the respondent. Appellant/defendant is liable to surrender vacant possession of the scheduled shop room to the respondent/plaintiff in compliance with the decree of mandatory injunction, directing him to deliver vacant possession of the scheduled RSA 326/09 3 shop room to the respondent/plaintiff. No suit for recovery of possession is necessary as is contended by the counsel for the appellant/defendant. 4. Finally, counsel for the appellant submits that the appellant/defendant be granted six months' time to surrender vacant possession of the scheduled shop room, finding out another shop room for conduct of his business. Respondent/plaintiff, who is submitted to be a Barber, also will be finding it difficult, being unable to follow his avocation in the absence of an accommodation for the purpose which can only be obtained by the appellant/defendant surrendering vacant possession of the scheduled shop room. 5. Considering the relationship between the parties and the entire circumstances of the case, I am of the view that appellant/defendant can be granted three months' time to surrender vacant possession of the scheduled shop room to the respondent/plaintiff. Apart from the said relief RSA 326/09 4 of granting some time to surrender vacant possession of the scheduled shop room, the appellant/defendant is not entitled to any other relief in this Regular Second appeal. No substantial question of law also arises for consideration by this Court in this Regular Second Appeal as is attempted to be made out. In the result, I dismiss this Regular Second Appeal in limine. But, at the same time the appellant/defendant is granted three months' time to surrender vacant possession of the scheduled shop room to the respondent/plaintiff. On no account shall he be entitled to extension of time to surrender vacant possession. 30th March, 2009 (K.P.Balachandran, Judge) tkv