IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 RSA.No. 981 of 2007() --------------------- AS.157/2004 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.482/2001 of II ADDITIONAL MUNSIFF'S COURT, ERNAKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS ----------------------------------------------- 1. VALSA JOSE, W/O.LATE DR.P.J.JOSE, PUTHERICKAL HOUSE, MARKET ROAD, ERNAKULAM, COCHIN - 35. 2. VEENA FRANKLIN, D/O.LATE DR.P.J.JOSE, PUTHERICKAL HOUSE, MARKET ROAD, ERNAKULAM, COCHIN 35. 3. PRIYA JOSE, D/O.LATE DR.P.J.JOSE, PUTHERICKAL HOUSE, MARKET ROAD, ERNAKULAM, COCHIN - 35. 4. JOPPU JOSE, S/O.LATE DR.P.J.JOSE, PUTHERICKAL HOUSE, MARKET ROAD, ERNAKULAM, COCHIN - 35. BY ADV. SRI.S.VINOD BHAT RESPONDENT/ RESPONDENT/PLAINTIFF --------------------------------------------- M/S.CAS CASTLES ENGINEERS AND BUILDERS, XXXVII/1069, ELAMKULAM ROAD, KOCHI - 17 REPRESENTED BY ITS MANAGING PARTNER SUNNY VARGHESE S/O.LATE P.VARGHESE. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 981 of 2007 ========================== Dated this the 6th day of October, 2008. JUDGMENT Heard both sides. 2. Defendants 1 to 4 in a suit for injunction restraining the defendants from putting up a gate on the south-eastern side of plaint schedule property and from obstructing the plaintiff from drawing water from the well situated to the west of the plaint schedule property, are the appellants. Plaint schedule property is 16 cents of land abutting the Corporation road which runs north- south along the eastern boundary of the plaint schedule property. The residential house of the defendants is situated farther to the west of the plaint schedule property. The corporation road is the common access both for the plaint schedule property as well as the western property of the defendants. The defendants are the owners of the property. The plaintiff is a builder. As per Ext.A3 agreement dated 17.12.1997, the defendants engaged the plaintiff for the construction of a four storied commercial building in the plaint schedule property. As per Ext.A3 agreement, the R.S.A. No. 981/2007 : 2: plaintiff was given the right to sell 55 cents of the area to intend purchases and collect the money. Defendants 1 to 4 who are the owners of the land are described as owners and the plaintiff is described as the promoter in Ext.A3 agreement. There are clauses in Ext.A3 agreement to indicate that the owners shall be the persons in possession of the property. It is admitted that the plaintiff thereafter started the construction of the building and all the four stories in the building are completed and what remains is the finishing work. In the mean while, disputes arose between the parties resulting in the defendants filing a suit as O.S. No. 701 of 2000 before the Sub Court, Ernakulam seeking a perpetual injunction restraining the plaintiff from constructing the building in the plaint schedule property. The said suit filed by the defendants was dismissed as per Ext.A1 judgment dated 07.04.2003. It is admitted that the said judgment and the decree were confirmed in appeal and the Second Appeal preferred therefrom was also dismissed due to the delay in re- presentation of the appeal. The defendants claim to have preferred a special leave petition before the Supreme Court of R.S.A. No. 981/2007 : 3: India. But the fact remains that the earlier suit for injunction filed by the present defendants/appellants stands dismissed. It is thereafter that the present suit was filed in the year 2001 by the plaintiff alleging that the defendants were attempting to put spokes in the wheel by putting up a compound wall to the south eastern portion of the plaint schedule property abutting the corporation road and also obstructing the plaintiff/builder from drawing watter from the well situated to the west of the plaint schedule property. Both the courts below have decreed the suit repelling the contentions of the appellants that they are in possession of the property and the plaintiff's claim that they are in possession of property cannot be countenanced. While the trial court found that both the parties are in joint possession, the lower appellate court observed that both the parties are in joint possession and plaintiff is a co-owner along with the defendants. It is the said judgment and decree which are assailed in this Second Appeal. 3. The learned counsel appearing for the appellants/defendants made the following submissions before me R.S.A. No. 981/2007 : 4: in support of the Second Appeal:- The clause in Ext.A3 agreement will clearly indicate that the arrangement was only one of leave and licence and the status of the plaintiff is only as promoter/builder and the document unambiguously declares that the owners namely defendants 1 to 4 are in possession of the property. The documents only gives a permission to plaintiff to construct a building in the plaint schedule property. The plaintiff cannot claim exclusive possession under the cover of the said agreement. In the case of a licence it is the licensor who is in possession and the licensee is only permitted to do certain things in the property, but for which permission it would be unlawful for the licensee to do any act stipulated in the licence. The effect of the owner handing over the site for construction cannot be understood as handing over absolute possession to the builder. This position is made clear at page 572 under paragraph 4.145 in the 11th edition of Hudson's Building Contracts wherein it is indicated that in the legal sense, in contra distinction to a case of tenancy, possession of a builder is merely a temporary and revocable right of occupation R.S.A. No. 981/2007 : 5: incidental to, and only to the extent reasonably required by, the work undertaken by the contractor in his contract. Such being the position, it was erroneous on the part of the courts below to hold that the plaintiff is in joint possession along with the defendants or that he is an owner along with the defendants. 4. The observation by the lower appellate court that the plaintiff is an owner along with the defendants may be an over statement of law if we go by Ext.A3 agreement alone. Probably, the lower appellate court was persuaded to hold so by resort to the covenants in Ext.A4 power of attorney executed by the defendants. But the fact remains that pursuant to Ext.A3 agreement, the plaintiff had started constructing the building in the plaint schedule property and after disputes arose between the parties, the defendants had unsuccessfully sued the plaintiff with a suit for injunction which stands dismissed as on today. Hence the defendants also cannot claim any exclusive possession of the plaint schedule property so as to keep plaintiff at bay. 5. As for the attempt of the defendants in putting up a compound wall at the south eastern corner of the plaint schedule R.S.A. No. 981/2007 : 6: property, even though the submission was that it was to prevent undesirable persons from having access to the plaint schedule property and then to the western property of the defendants, the said intention of the defendants is not as innocuous as it is attempted to be projected. It is only as a measure to have control over the property that the defendants have planned to put up a gate at the south eastern side of the plaint schedule property. The submission by the appellants' counsel that a key of the gate will be handed over to the plaintiff also was made only for the first time before this Court and no such suggestion was ever made before the courts below. When the construction of the building by the plaintiff was by making use of the water in the wall situated to the west of the plaint schedule property, the concession now made by the counsel for the appellants that the appellants do not want to obstruct the plaintiff from drawing the water in the wall also has no relevance or bona fides. I fully agree with the findings of the trial court that the parties are in joint possession of the property and the defendants cannot take exception to the plaintiff constructing the building or having R.S.A. No. 981/2007 : 7: access to the plaint schedule property so long as the plaintiff is lawfully implementing the terms of Ext.A3 agreement and A4 power of attorney deed. The decree for injunction was rightly granted by the courts below. I do not find any question of law, much less, substantial question of law so as to interfere with the findings recorded by the courts below. The questions of law formulated in the memorandum of appeal do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 6th day of October, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 981/2007 : 8: