IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 RSA.No. 321 of 2009(E) ---------------------- AS.43/2008 of SUB COURT, PERUMBAVOOR OS.301/2004 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/IST APPELLANT/IST PLAINTIFF --------------------------------------------------------- RAJESH,S/O.LATE GOVINDAN, RESIDING AT VAZHAYIL HOUSE, PERUMBAVOOR VILLAGE. BY ADV. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS: RESPONDENTS&2ND APPELLANT/DEFENDANTS&2ND PLAINTIFF ----------------------------------------------------------------------------------------------------------- 1. MUHAMMED RAFEEQUE @ MOIDHU.A., S/O.MAMMUTTY,RESIDING AT MILL HOUSE, PERUMBAVOOR KARA,PERUMBAVOOR VILLAGE. 2. PERUMBAVOOR MUNICIPALITY, REP.BY ITS SECRETARY, PERUMBAVOOR KARA,PERUMBAVOOR VILLAGE. 3. AISHA,W/O.B.M.MAMMOOTTY, RESIDING AT MILL HOUSE, PERUMBAVOOR KARA,PERUMBAVOOR VILLAGE. 4. SHAHEED,S/O.B.M.MAMMOOTTY, RESIDING AT MILL HOUSE, PERUMBAVOOR KARA,PERUMBAVOOR VILLAGE. 5. RANJITH,S/O.LATE GOVINDAN, RESIDING AT VAZHAYIL HOUSE, PERUMBAVOOR VILLAGE,REP.BY HIS POWER OF ATTORNEY HOLDER V.G.SANTHOSHKUMAR,S/O.LATE GOVINDAN, RESIDING AT VAZHAYIL HOUSE,PERUMBAVOOR VILLAGE. ADV. SRI.G.RAJAGOPAL(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/08/2009 ALONG WITH R.S.A. NO.632 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO.732 OF 2009 IN R.S.A. NO. 321 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 20.08.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.Nos.321 & 632 of 2009 ---------------------------------------- Dated this the 20th day of August, 2009 JUDGMENT Plaintiffs 1 and 2 in O.S. No. 301/2004 on the file of the Munsiff Court, Perumbavoor are the appellants in R.S.A. No. 321/2009 and 632/2009 respectively The said appeals are directed against the judgment in A.S. No. 43/2008 on the file of the Sub Court Perumbavoor which arises from the above said Suits. The suit was filed for permanent Prohibitory injunction and for mandatory injunction The suit was dismissed by the trial court and confirmed in appeal by the lower Appellate court. Hence the Second Appeal The parties hereinafter referred to as plaintiffs and defendants as arrayed in the Suit. 2. The co-owners of the property in SyNos.62 and 99 who are the plaintiffs , their family members and relatives issued a consent letter in favour of the 1st defendant for submission before the 2nd defendant to construct a shopping complex adjacent to the eastern side of the compound wall in Re-Survey No. 62 and 99. It is the plaintiffs case that the length of 73 meters described in the consent letter was a mistake and that the consent was given only to construct the shopping complex as stated above. It is also contended that the 1st defendant carried out the construction violating the provisions of the Kerala Municipality Building Rules 1999 (Herein after referred to as the Rules) R.S.A.Nos.321 & 632 of 2009 -2- 3. The 1st defendant contended that the length was the bargaining point. In fact the consent was given for 73 meters. Even though he obtained the consent for the 73 metres, he only completed the B block in his multi storied complex. it is also contended that he maintained the distance Rule while construction of A and B blocks and that the plaintiffs estopped from contending that they have not given consent for 73 metres 4. The 2nd defendant is the Perumbavoor Municipality represented by its Secretary. It is contended by the 2nd defendant Municipality that there is no violation of the Rules It is also contended that the the officers of the 2nd defendant Municipality conducted an enquiry on 18.8.2004 and found that there was no violation of the Rules. 5. In support of the plaintiff's claim the trial court examined PW1 and DW1 Exts A1 to A20 and Exts C1 , C1(a), C2 , C2(a) C3 and C3(a) 6. The counsel for the 1st defendant contended that the plaintiffs and their relatives issued Ext.A7 consent letter to construct the building in the 1st defendant's property abutting their properties and that as a reciprocal promise the predecessor of the 1st defendant issued consent letter to the plaintiffs and their relatives to construct the building in their property. It is also contended that the plaintiffs received Rs.50,000/- as consideration for giving the consent to construct the building by the 1st defendant. Ext.A7 is the certified copy of the consent letter issued by PW1 and one Ratnamma. The 1st defendant also asserted that Ext.A7 consent letter was prepared by the plaintiffs themselves. After considering R.S.A.Nos.321 & 632 of 2009 -3- the rival contentions set up by the parties the trial court observed that there is no pleadings to the effect that the defendants got executed documents by intentionally misrepresenting the plaintiffs or other executants. After perusing Ext.A7 the trial court also found that the entry of 73 meters is verified and attested by the Notary Public. 6. The Plaintiffs specifically contended that Ext.A7 consent letter was given only with respect to the eastern boundary of the property in resurvey 62 and 99 and that there was no consent with regard to the boundary of the property in resurvey No.92 and 93 The said specific contention was also elaborately examined by the trial court. The trial court found that the plaintiffs and other executants, eventhough well-educated persons, not expressed their dissent for the construction of the building on the eastern side abutting the boundary and that in Ext.A7 it is categorically stated that the consent is limited to 73 metres The trial court also examined the Commission report and held that the northern B block was completed before the institution of the suit. PW1 also testified that the consent was given for constructing the building abutting the western boundary of B schedule property The trial court also noticed that there were some change at the time of execution of the Ext.A7 document and held that it cannot be presumed that the parties entered into the agreement for the construction of the multi storied building in B schedule abutting the western boundary and that the total length for the construction to which consent was granted is limited to 73 metres. The trial court concluded that the construction is not limited to properties in re-survey 62 R.S.A.Nos.321 & 632 of 2009 -4- and 99 as contended by the plaintiffs and that Ext.A19 agreement is executed by the father of the 1st defendant in favour of the plaintiff's granting consent for constructing the building in their property abutting the boundary of the 1st defendants property. From the above facts and circumstance it is to be inferred that the parties mutually agreed and allowed the 1st defendant to construct the building abutting the western boundary to a length of 73 metres. 7. The learned senior counsel appearing for the plaintiffs pointed out that Rule 24(5) of the Rules mandates provision for side yard and other conditions of constructions. It is also pointed out that the 1st defendant constructed the building in violation of the Rules to a height of 12.2 metres. At this stage it is to be noted that as PW1 the plaintiffs categorically testified before the trial court that they are seeking no remedy or relief against B block . Admittedly the plaintiffs agreed to give consent for the construction of a building in B Schedule abutting the western boundary. After referring to Rule 24(5) of the Rules 1999 the trial court held that if there is any violation of Rules it is up to the Municipality to act and take action and proceedings 8. In this case the 2nd defendant Municipality contended that there is no violation of the Rules after inspection of the site by its officers. The trial court held that the recitals in Ext.A7and the oral evidence of PW1 and DW1 would point to the conclusion that the intention of the plaintiffs was to give consent for the construction of a building in B schedule abutting the western boundary and therefore the length of 73 metres in R.S.A.Nos.321 & 632 of 2009 -5- Ext.A1 has more important than the Survey number mentioned in clause 1 of Ext.A7. 9. It is to be noted that the first phase of the construction was completed by the year 2004 The construction of the northern block was completed before the alleged date of cause of action. There is no pleadings in the plaint regarding the misrepresentation of the distance by the 1st defendant to attract the provisions of Indian Contract Act. The complaint against Ext.A7 is totally unbelievable At this stage the 1st defendant contended that after completion of the first phase when he started the construction of the second phase the plaintiffs demanded more money Ext.A19 agreement will also shows that the predecessor of the 1st defendant gave consent to the plaintiffs to construct the building abutting his property and legal heirs of Divakaran Ext.A7 and A19 were executed on 3.2.2001 at the office of the Advocate Notary K.K.George After perusing the said documents and the Commissioner's reports and having taken into consideration the attendant circumstances the trial court concluded that Ext.A7 is intended not only for the properties in re-survey 62 and 99 but for 73 metres . The trial court also observed that the attempt of the plaintiffs is to cause troubles to the construction in the 1st defendant's property and the suit is devoid of any merits. 10. The reasons for the dismissal of the suit was agitated before the lower appellate court by the plaintiffs/appellants. The lower appellate court also examined in detail the reasons and agreed with the findings of the trial court . The lower appellate court also after re-appreciating the R.S.A.Nos.321 & 632 of 2009 -6- entire evidence and referring to Rule 24(5) of the Act, arrived at the very same conclusion recorded by the trial court The lower appellate court held that the appeal is without any merits and the same was dismissed with costs. Before this Court, the learned senior counsel for the plaintiffs/appellants brought to my notice the various provisions of the Rules and contended that construction was made in violation of the Rules . It is worthwhile to note that the 2nd defendant Municipality contended that there is no violation of the Kerala Municipality Building rules. At the same time the trial court also held that if there is any violation of the provisions of Rules, it is up to the Municipality to take action and proceedings Therefore the claim of the plaintiffs/appellants that the construction was made in violation of the provisions of the Rules is unfounded and without any basis The question examined by the courts below on merits as to whether the plaintiffs are entitled to get prohibitory injunction and mandatory injunction as prayed for and concurrently held that the plaintiffs are not entitled to the reliefs. Since the findings are entered by the courts below solely on the basis of evidence adduced by the parties and the attendant circumstances, there is no sustainable grounds to invoke this Court's Jurisdiction under Section 100 of the C.P.C. No questions of law much less an substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. R.S.A.Nos.321 & 632 of 2009 -7- HARUN-UL-RASHID, J. --------------------------- R.S.A. Nos. 321 & 632 of 2009 ---------------------------- JUDGMENT 20th August, 2009