IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 SA.No. 240 of 2000(C) --------------------- AS.227/1992 of II ADDITIONAL DISTRICT COURT, THRISSUR OS.663/1985 of II ADDL. MUNSIFF COURT, THRISSUR .................... APPELLANT(S): --------------------- 1. MANAGING PARTNER, RAMDAS MOVIE HOUSE, M.G.ROAD, THRISSUR VILLAGE, THRISSUR TALUK. 2. DROUPATHI ANTHARJANAM, CHELOOR MANA, CHEMBUKAVU VILLAGE, THRISSUR TALUK. 3. JYOTHI, D/O.RAVI CHELOOR, -DO- 4. PREETHI, D/O.RAVI CHELOOR, -DO- 5. RAMDAS, S/O.RAVI CHELOOR, -DO- BY ADV. SRI.S.K.BRAHMANANDAN SRI.S.B.PREMACHANDRA PRABHU SRI.G.SREENIVASA PRABHU RESPONDENT(S): ---------------------- 1. SULAIMU, W/O.KONNATHUVALAPPIL HUSSAIN, THALAMUNDA DESOM, EDAPPAL AMSOM. 2. SAHEENA (MINOR), D/O.1ST RESPONDENT SULAIMU, -DO- -DO- REP. BY FIRST RESPONDENT. 3. HUSSAIN, S/O.KONNATHUVALAPPIL VEERANKUTTY, THALAMUNDA DESOM, EDAPPAL AMSOM, PONNANI TALUK. ADDL. 4TH RESPONDENT IMPLEADED (THIRD PARTY) 4. CHANDRAPRAKASHAN, S/O.GOVINDAN, NANDILATH FRIDGE CENTER, NANDILATH BUILDINGS, M.G.ROAD, THRISSUR -1. (THE PROPOSED 4TH RESPONDENT IS IMPLEADED AS ADDL.4TH RESPONDENT AS PER ORDER DT. 20.9.2011 IN I.A.1700/11) ADV. SRI.K.PADMANABHAN SRI.M.V.MATHEW THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2011, ALONG WITH SA NO. 241 OF 2000 THE COURT ON 1.12.2011 DELIVERED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- S.A. Nos.240 & 241 of 2000 ----------------------------------------------- Dated 1st December, 2011. J U D G M E N T S.A.240/2000 is an appeal filed by defendant nos.1, 5, 6, 7 and 8 in O.S.663/85 on the file of the II Additional Munsiff Court, Thrissur. S.A.241/2000 is filed by plaintiffs 1 to 5 in O.S.618/85 on the file of the II Additional Munsiff Court, Thrissur. 2. O.S.618/85 is filed by the plaintiffs for a decree of prohibitory injunction restraining the defendants from pulling down the compound wall on the western side of the plaint schedule property or making any alterations to it. The plaint averments in brief are as follows : The plaint schedule property is 4 cents in extent and forms an enclosed pathway from the M.G.Road to the theatre building belonging to the plaintiffs. The enclosure for the queue for tickets is provided in the plaint schedule property. The plaint schedule property along with other properties is in the exclusive ownership and enjoyment of the plaintiffs. The compound wall on either side of the plaint schedule property belongs to the plaintiffs. The pillars for the gate is constructed along with the compound wall. High tension SA Nos. 240 & 241 of 2000 2 wire to the theatre is taken underneath by the side of the western boundary wall. The compound wall is absolutely necessary for the theatre. It was further averred that the defendants approached the plaintiffs and wanted permission to pull down the western compound wall. Their intention is to pull down the western compound wall and erect grills so as to get a better view to their new shopping complex constructed on the western side. The property belonging to the defendants is at a lower level than the plaint schedule property. Pulling down the compound wall will also affect the lateral support of the plaint schedule property. The defendants threatened to forcibly demolish the compound wall. Therefore, the plaintiffs were constrained to file the suit. 3. The 2nd defendant filed written statement contending as follows : The compound wall on the western side of the plaint schedule property does not belong to the plaintiffs. The defendants are the owners of the property on the western side. The eastern and northern boundary walls of this property belong to the defendants. The western side of the plaint SA Nos. 240 & 241 of 2000 3 schedule property was the eastern wall of the building which was in existence earlier. The defendants are constructing a shopping complex in their property. The compound wall was also assigned by the original owners when the property was purchased. The plaint schedule property is lying at a higher level than the property of the defendants. The wall is very old and it is necessary to reconstruct the wall. The defendants wanted to reconstruct the wall in a modern way so as to be suitable with the new building constructed by him. They have the right to do so and the plaintiffs have no right to obstruct the demolition and reconstruction of the wall. The second defendant on behalf of the owners approached the plaintiffs for permission as a matter of grace etc. 4. O.S.663/85 is a suit for a decree of prohibitory injunction restraining the defendants from obstructing the plaintiffs in any way in demolishing and reconstructing the northern and eastern boundary walls of the plaint schedule property. The plaint averments in brief are as follows : The northern and eastern boundary walls of the plaint schedule SA Nos. 240 & 241 of 2000 4 property belongs to the plaintiffs. The plaintiffs have started construction of a shopping complex in the plaint schedule property owned by them. The defendants' movie house is situated on the northern side of the plaint schedule property. The pathway leading to the theatre is on the eastern side of the plaint schedule property. There was an old building in the property which has been now demolished. The plaint schedule property lies at a lower level than the theatre compound. The boundary walls on the eastern and northern sides of the plaint schedule property are very old and it is necessary to demolish and reconstruct the walls. The plaintiffs made arrangements to demolish the wall and put up a new wall. The wall belongs to the plaintiffs and they have got every right to demolish and put up a new wall. The defendants are likely to obstruct the demolition and reconstruction of the wall. Hence, a decree of prohibitory injunction has to be granted against the defendants. 5. The original first defendant filed his written statement contending as follows : The northern and eastern boundary walls of the plaint schedule property belongs to the SA Nos. 240 & 241 of 2000 5 defendant. The plaintiffs have no right over the said walls which were constructed by the predecessor of the defendants. The walls have been properly maintained by the defendant. The compound wall is necessary for the protection of theatre and the safety of the high tension cable. The plaintiffs' agent approached the defendant stating that the plaintiffs want to pull down the compound wall and erect grills. Plaintiffs threatened that they will pull down the compound wall. 6. In the Additional Munsiff Court, both the above suits were jointly tried and evidence was recorded in O.S.618/85. The evidence consists of oral testimony of PW1 and DW1 and documentary evidence of Exts.A1, A2, B1 to B9, C1, C1(a) and C2. The learned Additional Munsiff, on considering the evidence decreed O.S.618/85, granting a prohibitory injunction restraining the defendants from demolishing the compound wall at the western side of the plaint schedule property. O.S.663/85 was dismissed. Against the judgment and decree in O.S.618/85, defendants 4 and 5 in that suit filed A.S.225/1992 before the II Additional District Court, SA Nos. 240 & 241 of 2000 6 Thrissur. Against the judgment and decree in O.S.663/85, plaintiffs 6 and 7 in that suit filed A.S.227/92 before the II Additional District Court, Thrissur. As per common judgment in A.S.225 and 227 of 1992 dated 31.12.1999, the II Additional District Court, Thrissur allowed A.S.225/92, and the decree in O.S.618/85 was set aside and O.S.618/85 was dismissed. A.S.227/1992 was allowed and O.S.663/85 was decreed in favour of the plaintiffs therein, granting a decree for perpetual injunction restraining the defendants therein from obstructing the demolition and reconstruction of the eastern compound wall of the plaint schedule item in O.S.663/85 by the plaintiffs. Against that judgment and decree, the defendants 1, 5, 6, 7 and 8 in O.S.663/85 filed S.A.240/2000. The plaintiffs 1 to 5 in O.S.618/85 filed S.A.241/2000. 7. Heard learned counsel for the appellants in both the Second Appeals. At the time of hearing, learned counsel for the appellants raised the following contentions : The court below erred in accepting Ext.B9 affidavit in evidence. Admittedly, Ext.B9 is an affidavit filed by the predecessor in SA Nos. 240 & 241 of 2000 7 interest of the defendants in C.M.A.52/85 which arose out of the interim orders passed by the trial court. The said affidavit was rightly refused to be accepted by the trial court in evidence. But the court below held that the same is acceptable as per Section 32 of the Evidence Act, which is illegal and perverse. The court below erred in finding that the compound wall is in a dilapidated condition relying on the report of the Commissioner (Ext.C1). The Commissioner has not stated in his report that the western compound wall is not in a dilapidated condition. Recitals in the sale deed in favour of the predecessor in interest of the defendants is not at all binding on the plaintiff. The defendants have also not taken any steps to measure the property to prove that the disputed wall is within their property. Therefore, the court below erred in finding that the compound wall belongs to the defendants. 8. The appellants in both the above Second Appeals are one and the same persons. As observed by the lower appellate court, the dispute in both the above cases is with respect to the right over the western compound wall of the SA Nos. 240 & 241 of 2000 8 plaint schedule property in O.S.618/85. This is the eastern compound wall mentioned in O.S.663/85. As per Ext.B1 sale deed dated 21.11.1980 in favour of the defendants in O.S.618/85, that property was assigned to them by one Mukunda Marar. Ext.B1 sale deed would show that the compound walls on the south-east and north were also the subject matter of the assignment. The compound wall mentioned in Ext.B1 is the western compound wall involved in O.S.618/85. Ext.B9 is the copy of the affidavit filed by Mukunda Marar in C.M.A.52/85. The Munsiff Court refused to accept the said affidavit, stating that Ext.B9 has no evidentiary value as Mukunda Marar is dead and the plaintiffs have no opportunity to cross examine him. But, the lower appellate court observed that Ext.B9 affidavit was evidently by the person who was once the owner of the properties and his statement had direct bearing on the subject matter of the case. But the lower appellate court has not relied on Ext.P9 affidavit for the purpose of deciding the dispute between the parties. The appellants in A.S.Nos.225/92 and 227/92 are one and the same persons. In SA Nos. 240 & 241 of 2000 9 the Munsiff Court judgment, it is stated that the parties are referred to as the plaintiffs and defendants and the property as the plaint schedule property as they are described in O.S.618/85. In paragraph 21 of the judgment of the Munsiff Court, it is stated as follows : “Ext.C1 report submitted by the commissioner indicates that part of the compound wall at the western side of the plaint schedule property was once the wall of a building. The other portion of the compound wall is only a continuation of this wall which was once the wall of a building. Coupled with the recital in the schedule in Ext.B1, this is a strong circumstance in favour of the defendants. In the absence of any other evidence adduced by the plaintiffs to show that they have got a right over the western compound wall, in the light of the recital in the schedule in Ext.B1 and the indication in Ext.C1 report that a portion of the compound wall was once the wall of the building in the properties of the defendants, the case of the defendants that they are the owners of the compound wall appears to be more probable.” 9. In the judgment of the lower appellate court, it is stated at paragraph 13 as follows : SA Nos. 240 & 241 of 2000 10 “Further it could be seen that the report of the Commissioner Ext.C1 indicated that part of the disputed compound wall was the wall of the building of the appellants and the other portion of the compound wall was only a continuation of the wall of the building. The above aspects would positively indicate that over the disputed wall the present appellants had right absolute and it was part of the wall of the building even. The ownership over the disputed wall by the appellants stands established in the case.” 10. In the light of the finding of the learned Munsiff in paragraph 21 of the judgment, I am of the view that the finding of the lower appellate court that the appellants in those appeals have ownership over the disputed wall does not require any interference in the Second Appeals as the said finding is based on evidence on record. Since the appellants before the lower appellate court have ownership over the disputed wall, the plaintiffs in O.S.618/85 are not entitled to get prohibitory injunction as they have no right over the disputed wall. As the appellants before the lower appellate court have the ownership over the disputed compound wall, they are entitled to get a SA Nos. 240 & 241 of 2000 11 prohibitory injunction restraining the defendants in O.S.663/85 from obstructing the demolition and reconstruction of the eastern compound wall of the plaint schedule item in O.S.663/85 by the plaintiffs. As there is no illegality in the judgment of the lower appellate court in both the appeals, both the Second Appeals are liable to be dismissed, as they are without any merits. Accordingly, S.A.Nos.240 and 241 of 2000 are dismissed as they are without any merits. The parties are directed to suffer their respective costs in both the appeals. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.