IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 RSA.No. 1135 of 2006() ---------------------- AS.253/2003 of I ADDL.SUB COURT, KOZHIKODE OS.777/2000 of PRL.MUNSIFF COURT, KOZHIKODE-I .................... APPELLANTS/APPELLANTS/DEFENDANTS: ----------------------------------------------------- 1. BALAGOVINDAN, S/O. HARIHARAIYER, "SREEMATHA", 2C NORTH ROAD, CALICUT-2. 2. BHAGYA LAKSHMI, D/O. HARIHARAIYER, "ANANDA BHAIRAVI", KACHERI AMSOM, DESOM, EAST HILL ROAD, KOZHIKODE. BY ADV. SMT.T.RESMI DAMODARAN RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------ KATTUKUTTIYIL KUNHIRAMAN, S/O.KELAPPAN, SIVAPURI HOUSE, KACHERI AMSOM, DESOM, EAST HILL ROAD, KOZHIKODE. SMT.PRABHA R.MENON THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1135 OF 2006 -------------------------------- Dated this the 23rd day of November 2010 JUDGMENT The defendants are the appellants. Suit was one for injunction, both prohibitory and mandatory. Neighbouring property owners in a housing colony are the parties to the suit, and the disputes between them sprouted from the construction of a building by one of them, the defendants, in their property invading into the rights of the other, the plaintiff. Shorn off the plethora of allegations raised by the plaintiff to seek the discretionary reliefs of injunction and the contentions raised by the appellants/defendants to resist them, at this stage, what remain for consideration by this court, after major part of the directions given by the two courts below by way of mandatory injunction had been carried out, as admitted by both sides, relate to a sun shade of the building of the appellants/defendants in its first floor, which is alleged to be protruding into the property of the plaintiff even beyond the compound wall separating the properties of the parties. As regards the other constructions in the building put up by the appellants/defendants invading into the rights of the plaintiff over the adjoining property, allegedly violating the Building Rules, and so found established by the materials tendered in the case by both the courts below, R.S.A No.1135 OF 2006 - 2 - concededly, such constructions had been removed abating the nuisance thereof. However, a part of the decree concurrently granted in favour of the plaintiff directing removal of a portion of the sunshade in the building wall adjoining to the property of the plaintiff, the defendants still resist the decree. 2. Both the courts below have found that in the building constructed by the appellants/defendants the sunshades put up in the ground floor and first floor on the wall beside the property of the plaintiff protruded into his property to a width of 15 cm. A decree of mandatory injunction was granted commanding the defendants to cut and remove the protruding portion of the sunshades. Objectionable portion of the sunshade on the wall in the ground floor of the building, it is agreed upon, had been removed after the decree passed by the trial court was confirmed by the lower appellate court. Constructions allegedly put up over the compound wall, which too had been directed to be removed by both the courts, had also been removed. As indicated earlier, the challenge in the appeal is confined now only with respect to the decree given for removing the protruding portion of the sunshade, to a distance of 15 cm, on the second floor of the building of the defendants. R.S.A No.1135 OF 2006 - 3 - 3. Normally one would expect, in the facts presented, the appellants/defendants to give a quietus to the whole controversy complying with the decree of mandatory injunction when they had already complied with major part of the decrees passed by the courts below concurrently with respect to the removal of all other constructions which have been found to be unlawful and liable to be removed. However, the appellants desire to resist the decree directing them to remove portions of the sun shade of their building attached to the first floor canvassing the very same objections put up by them to resist the suit claims as a whole. Though several contentions had been taken to impeach the merit of the suit claims in view of the concurrent decision rendered by the two courts negativing them, in the present appeal the challenge is now confined only on the question whether the discretionary relief of mandatory injunction raised by the plaintiff suffered from any legal infirmity as barred by limitation and also by the conduct of the plaintiff, which, according to the defendants, would show that they have acquiesced with whatever constructions effected in the property of the defendants. Admittedly, the defendants have not produced the completion R.S.A No.1135 OF 2006 - 4 - certificate as to when they constructed the building, or the approved plan of the building other than Ext.B2, which was presented by them at a later point of time before the authority concerned taking advantage of the then existing rules to regularize the constructions which are shown to be not in tune with the Building Rules. Both the courts below have found the plan so produced by the defendant, Ext.B2, would not assist them in any manner to substantiate the contention raised by them that the construction of the building was completed in 1986. The only material that was stressed upon by the learned counsel for the appellants to show that the defendants have completed the construction of their building in plaint 'A' schedule much earlier to the suit is the admission purported to have been made by the plaintiff when he was examined before the court as a witness. Plaintiff had stated that he had completed the construction in his property 'B' schedule in 1979 and five years later the defendants started construction of their building in 'A' schedule. That, by itself, by no stretch of imagination could be construed as an admission from the part of the plaintiff that he had admitted of the completion of the construction in 'B' schedule property by the defendants in 1986 as contended by them. The R.S.A No.1135 OF 2006 - 5 - defendants had challenged the assessment made over the building before the local authority in 1994 is also banked upon to contend that at least before that date, they had completed the construction of the building. The suit filed nearly seven years later for the discretionary relief of mandatory injunction should have been found to be meritless is the next line of attack canvassed by the learned counsel for the appellant to assail the concurrent decision rendered by the courts below that the plaintiff, on the materials placed, has proved his entitlement for such a discretionary relief. What we find from the records produced by the defendants is only Ext.B1 and Ext.B2, both of them plans relating to the construction put up by them in their property 'A' schedule. Even assuming that the construction was completed in 1993 where it is established by the materials tendered that the sun shades of the building of the defendants protrude into the property of the plaintiff more than the right of the plaintiff to seek the discretionary relief of injunction for its removal as a continuous nuisance his lawful rights as the owner of the property to enjoy it without invasion of his rights also deserve to be taken note of and given due consideration. Both the courts below, on the materials placed, have come to the conclusion that R.S.A No.1135 OF 2006 - 6 - the sunshades attached to the building of the defendants protrude at least 15 cm. into the adjoining property of the plaintiff and the invasion so made is liable to be abated by cutting down the extended portion of those sunshades. Plea of acquiescence on the part of the plaintiff and also limitation canvassed contending that the construction of the building had been completed by the defendants seven years prior to the institution of the suit for on which no material was placed by them and which remained unsubstantiated, is hardly sufficient to unsettle the concurrent decision rendered by the two courts below. No question of law leave alone any substantial question of law is involved in the appeal, which is found to be devoid of any merit. Appeal is dismissed directing both sides to suffer their cost. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv