IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 RSA.No. 1220 of 2009() ---------------------- AS.117/2005 of PRINICIPAL DISTRICT COURT,TRIVANDRUM OS.1716/1998 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF: ---------------------------------------- LT.COL.K.P.R.NAIR, AGED 68 YEARS, RESIDING AT T.C.2/1420, VRINDAVAN HOUSING SCHEME, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.S.BALACHANDRAN (KULASEKHARAM) SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER RESPONDENT/RESPONDENT/ DEFENDANT: ------------------------------------ S.UDAYAN, AGED 51 YEARS, RESIDING AT SREELEKHA, UDHARASHIROMANI RAOD, VELLAYAMBALAM, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1220 of 2009 --------------------------------------- Dated this 20th day of November, 2009 JUDGMENT The second appeal is at the instance of plaintiff who successively lost the suit in the courts below and suffered a decree on a counter claim preferred by the respondent/defendant. 2. Appellant is a retired military personnel. At a time when he was working in the military, he embarked on construction of a multi storied building and supervision of the work was entrusted to the father of respondent. After construction of the ground floor and first floor was over, those portions were let out to the tenants. By that time, appellant completed his term of employment in the military, came back and took up for himself construction of the second and third floors. Father of the respondent died in the year 1996. Appellant claimed that in the space beneath the staircase on the ground floor, he had put up a typewriter and photocopying machine and was engaged in that business. After the death of respondent's father, respondent tried to trespass into the said portion and hence the suit for injunction. Respondent contended that he is a tenant of the small room bearing door No.TC 2/1420 situated under the staircase which is described more clearly in the schedule to the counter claim. He claimed that his father set up typewriter and photocopying machine in that portion beneath the staircase in the year 1994. That portion was taken on R.S.A.No.1220 of 2009 2 rent by his father who executed a rent deed in favour of the appellant on 15-02-1994. After the death of the father he continued that business. A name board also was put up in front of the said room. On 25-09-1998 he found the name board and wooden cabin removed and the gate, locked. On his complaint police registered a case against the appellant for offences punishable under sections 447 and 448 of IPC. Appellant removed the gate in front of the room like portion and closed the space with brick wall. It is also the contention of respondent that his father was supervising construction of the building and on that account Rs.34,139/- was due to his father. He claimed that he was forcibly dispossessed and sought a mandatory injunction for restoration of possession of the small room. He also prayed for realisation of Rs.81,000/- by way of damages for loss of business from 25-09-1998 onwards. In answer to the counter claim appellant filed a written statement denying the allegations. Trial court accepted the case of respondent, dismissed the suit and allowed the counter claim granting mandatory injunction for restoration of possession and also for recovery of damages. Appellant challenged dismissal of the suit and decree on the counter claim. First appellate court confirmed dismissal of the suit and decree for mandatory injunction on the counter claim but set aside the decree for recovery of damages. Hence the second appeal. It is contended in the second appeal that without any evidence R.S.A.No.1220 of 2009 3 of tenancy in favour of respondent, courts below were not justified in granting decree for mandatory injunction and at any rate prayer for mandatory injunction is barred by limitation. Learned counsel has placed reliance on the decision in Tikka Ram Vs. Kartara (2008 (12) SCC 634) 3. Ext.B20 is photocopy of the rent deed allegedly executed by the father of respondent in favour of appellant. That document was challenged by the appellant as fabricated. Trial court accepted Ext.B20 but the first appellate court has not relied on Ext.B20 since appellant was not confronted with Ext.B20, that document was not proved through the respondent and instead, trial court on its own marked the document as an exhibit. Other documents produced by the respondent to support his case are Exts.B1 to B19. He has given oral evidence as DW1 while, appellant produced Exts.A1 to A5 and gave evidence as PW1. It is not in dispute that beneath the staircase on the ground floor a typewriter and photocopier had been put up and that business was carried on during the relevant time. According to the appellant, that business belonged to him while respondent contended that it was started by his father as early as in 1994 on getting a lease of the room from the appellant and he continued that business after the death of the father in the year 1996. Appellant did not produce any document to show that the said business belonged to R.S.A.No.1220 of 2009 4 him. On the other hand, respondent produced Exts.B5, B6, B10 to B12 and B14 to B19 to show that the typewriter and photocopier were purchased by his father. In fact, even according to the appellant, father of respondent was doing business in the disputed portion though according to him, as his agent. But there is no evidence of any such agency. Ext.B18 show that respondent was a member of the Merchants' Association engaged in business under the name style, “S.L. Photostats and Communications”. Ext.B17, history card shows that servicing of the photocopier was done last, on 16-09-1998, just a few days before the institution of the suit. Not only that appellant did not take out a commission to report on the condition of the disputed room on the date of suit, he vehemently opposed the application moved by the respondent for that purpose and got it dismissed. Obviously appellant did not want the court to understand the condition of the disputed room. Now the contention advanced on behalf of the appellant is that documents produced by the respondent will not show that the business, making use of the typewriter and photocopier was done in the disputed portion of the building. The argument may appear to be attractive but, appellant has no case that respondent or his father was doing that business elsewhere, and there is no evidence also in that line. I stated that appellant did not produce any document to show that photocopier and typewriter belonged to him. It is not R.S.A.No.1220 of 2009 5 disputed that alleging forcible dispossession from the disputed room on 25-09-1998 respondent preferred a complaint in the local Magistrate's Court which was forwarded to the police and a case was registered against the appellant for alleged criminal trespass. These circumstances were taken into account by the courts below to hold that father of the respondent and after his death, respondent were doing business in the disputed premises. It is not disputed that Exts.B1 to B4 are letters sent by the appellant to the father of respondent which would show that the latter was supervising construction of the building at a time when the appellant employed in the military. Appellant as PW1 admitted that father of the respondent even spent money for construction of the building. In the circumstances courts below accepted version of the respondent that appellant, on a rental arrangement gave the disputed portion to the father of the respondent. That finding rest on a proper appreciation of the evidence and based on preponderance of probability. No substantial question of law is involved. The decision relied by the learned counsel and referred supra has no application to the facts of the case. 4. It is contended by learned counsel that the counter claim is made after six months of the alleged dispossession and hence recovery of possession cannot brought under section 6 of the Specific Relief Act. Assuming so, courts below have found in favour of tenancy R.S.A.No.1220 of 2009 6 pleaded by the respondent and on the strength of that leasehold right, granted decree for recovery of possession since counter claim is made within twelve years of the date of dispossession. On hearing learned counsel for appellant and perusing the judgment under challenge I do not find any substantial question of law involved in this appeal. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/