IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 RSA.No. 759 of 2007() --------------------- AS.62/2003 of SUB COURT, THALASSERY OS.353/1996 of MUNSIFF COURT, THALASSERY .................... : APPELLANTS/APPELLANTS/PLAINTIFFS ------------------------------------------------- 1. CHATHOTH RYRU NAIR, S/O.T.R.NAIR, BUSINESS, RESIDING AT PARATHALOTH HOUSE, DHARMADAM AMSOM, HOLUR DESOM, THALASSERY TALUK. 2. MUNDERI NARAYANIKUTTY AMMA, D/O.LATE APPU NAIR, RESIDING AT PARATHALOTH HOUSE, DHARMADAM AMSOM, MELUR DESOM, THALASSERY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, CHATHOTH RYRU NAIR, IST APPELLANT. BY ADV. SRI.MILLU DANDAPANI RESPONDENTS: RESPONDENTS-DEFENDANTS 1, 2 & 4 TO 8 & SUPPL.9TO12 ------------------------------------------------------------------------------------- 1. V.MUKUNDAN, S/O.LATE N.V.NARAYANI, RESIDING AT PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK, INFRONT OF R.C.AMALA U.P.SCHOOL, OLAYAMBALAM. 2. BALAN, S/O.MADHAVI, RESIDING AT PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK, INFRONT OF R.C.AMALA U.P.SCHOOL, OLAYAMBALAM. 3. RAJAN, S/O.MADHAVI, RESIDING AT PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK, INFRONT OF R.C.AMALA U.P.SCHOOL, OLAYAMBALAM. 4. PRADEESAN, S/O.MADHAVI, RESIDING AT PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK, INFRONT OF R.C.AMALA U.P.SCHOOL, OLAYAMBALAM. 5. SATHI, D/O.MADHAVI, RESIDING AT PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK, INFRONT OF R.C.AMALA U.P.SCHOOL, OLAYAMBALAM. 6. RAVI, S/O.MADHAVI, RESIDING AT PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK, INFRONT OF R.C.AMALA U.P.SCHOOL, OLAYAMBALAM. 7. PRAKASHAN, S/O.MADHAVI, RESIDING AT PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, THALASSERY TALUK, INFRONT OF R.C.AMALA U.P.SCHOOL, OLAYAMBALAM. 8. YESODHA, D/O.LATE NARAYANI, RESIDING AT VALIYAKANDYPARAMBIL, NEAR R.C.AMALA SCHOOL, OLAYAMBALAM, PINARAYI AMSOM, KIZHAKKUMBHAGOM DESOM, P.O.PINARAYI, THALASSERY. 9. SREEDHARAN, S/O.LATE NARAYANI, RESIDING AT VALIYAKANDYPARAMBIL, NEAR R.C.AMALA SCHOOL, OLAYAMBALAM, PINARAYI AMSOM, KIZHAKKUMBHAGAM DESOM, P.O.PINARAYI, THALASSERY. 10. BHASKARAN, S/O.LATE NARAYANI, RESIDING AT VALIYAKANDYPARAMBIL, NEAR R.C.AMALA SCHOOL, OLAYAMBALAM, PINARAYI AMSOM, KIZHAKKUMBHAGAM DESOM, P.O.PINARAYI, THALASSERY. 11. SANTHA, D/O.LATE NARAYANI, RESIDING AT VALIYAKANDYPARAMBIL, NEAR R.C.AMALA SCHOOL, OLAYAMBALAM, PINARAYI AMSOM, KIZHAKKUMBHAGAM DESOM, P.O.PINARAYI, THALASSERY. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 759 OF 2007 =========================== Dated this the 12th day of February, 2008 JUDGMENT Plaintiffs in O.S.353/1996 on the file of Munsiff Court, Thalassery are the appellants. Defendants are the respondents. Appellants instituted the suit for permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property. It was contended that plaint A schedule property and the adjacent plot originally belonged to Karayi Achuthan and in 1949 he assigned plaint A schedule property in favour of first appellant and his brother Krishnan Nair for the purpose of constructing a shop room and plaint A schedule property was in his absolute possession and Krishnan Nair gifted his right over plaint A schedule property in favour of first appellant under a gift deed dated 12.8.1960 and later first appellant transferred all his rights over plaint A R.S.A.759/2007 2 schedule property measuring 3 cents with the shop building in favour of his wife second appellant on 11.8.1989 and plaint A schedule property is thus in the possession of second appellant. It was contended that plaint B schedule property is in the possession of first appellant as per Ext.A4 lease deed dated 5.11.1956 executed between himself and one Vadavathi Kunhiraman and as it was a commercial lease for construction of shop building and construction was made first appellant is entitled to fixity of tenure. Respondents 1 and 2 are the legal heirs of Karayi Achuthan and respondents 3 to 6 are the legal representatives of Kunhiraman. It was contended that respondents have no right to plaint B schedule property and they attempted to trespass into that property and they are to be restrained by a permanent prohibitory injunction. Respondents 1 and 2 in their written statement admitted that plaint schedule property originally belonged to Karayi Achuthan and on his death, it devolved on his children first R.S.A.759/2007 3 respondent and her brothers Kunhiraman and Damodaran and sister Mathu. Second respondent is the son of first respondent and respondents 3 to 6 are the widow and children of Kunhiraman. It was contended that the co-ownership properties were partitioned in 1964 and different portions of the properties were allotted to different sharers and the property allotted to first respondent is in the south which comes up to the road in the west where a building was reconstructed which was allotted to first appellant and there was no tenant landlord relationship between appellants and respondents and no rent was paid by appellants and even if a lease deed was executed by first appellant, he did not construct any building and is not entitled to the protection of Kerala Land Reforms Act. It was contended that respondents are not aware of the lease deed allegedly executed in respect of plaint B schedule property and in any case appellants are not entitled to the decree sought for. Respondents 3 to 7 the legal heirs of Kunhiraman filed a R.S.A.759/2007 4 written statement admitting that Karayi Achuthan leased out some plots on the western part touching Thalassery -Mambaram public road to third parties for constructing shop building. Plaint A schedule is such a plot permitted by Achuthan to construct shop building alone and plaint B schedule property was never in the possession of first appellant or Kunhiraman and even if he had given any lease it is not legally valid as he has no right to create such a lease without the consent of other co-owners. After the death of Kunhiraman the entire properties of Karayi Achuthan were partitioned as per partition deed dated 7.4.1964 and respondents are entitled to plaint B schedule property and it is in their possession and appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, and Exts.A1 to A9 and B1 to B4, C1 to C3 dismissed the suit holding that appellants did not establish any right or possession to the plaint B schedule property. It was found that though R.S.A.759/2007 5 appellants are claiming right under Ext.A4 lease deed executed in favour of Kunhiraman, one of the co-owner, there is no evidence to prove that first appellant obtained possession of the property thereunder or constructed a building or was doing any business as alleged and he is not entitled to protection under Section 106 of Kerala Land Reforms Act. Finding that appellants failed to establish their possession of the plaint B schedule property and possession over plaint A schedule is not in dispute, suit was dismissed. Appellants challenged the judgment before Sub Court, Thalassery in A.S.62/2003. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned senior counsel appearing for appellants was heard. 4. The argument of learned senior counsel is that courts below did not properly appreciate the scope of the suit or the evidence on record. It R.S.A.759/2007 6 was argued that suit is only one for injunction, but more importance was given to the question whether the lease is protected as it is a commercial lease as provided under section 106 of the Kerala Land Reforms Act. It was argued that when evidence establish that under Ext.A4, plaint B schedule property was obtained by first appellant from Kunhiraman in 1956 and a building was constructed therein as found by the Commissioner at the time of inspection, courts below should have upheld the case of appellants that it is a commercial lease and acting on the lease first appellant constructed a building and is entitled to the protection of 106 of Kerala Land Reforms Act. It was argued that in any event as appellants established their possession of plaint B schedule property, respondents are not entitled to trespass into the property and therefore a decree for injunction should have been granted. 5. On hearing the learned counsel, I do not find that any substantial question of law is R.S.A.759/2007 7 involved in the appeal. 6. Though suit is one for injunction appellants themselves specifically pleaded that plaint B schedule property was obtained under Ext.A4 lease deed and it is a commercial lease enabling first appellant to construct a building for commercial purpose and acting on that lease deed, first appellant constructed a building and he is protected by the provisions of section 106 of Kerala Land Reforms Act. Though fixity of tenure was claimed, Section 106 of Kerala Land Reforms Act does not provide a fixity of tenure to a tenant. Whatever it be, trial court and first appellate court on appreciating the evidence found that apart from Ext.A4, there is no evidence to prove that land was obtained by first appellant on lease and acting on the lease a building was constructed for commercial purpose. Though it was contended by appellants that after construction of the building business was being carried out, appellants did not produce even one receipt for R.S.A.759/2007 8 payment of pattom as provided under Ext.A4 or receipt for payment of building tax or professional tax or receipt to prove that he was doing business in the building. Courts below on proper appreciation of the evidence found that there is no evidence to prove that first appellant constructed any building in the plaint B schedule property. Courts below on the evidence rightly found that appellants are not entitled to the protection provided under section 106 of Kerala Land Reforms Act. 7. Though learned senior counsel argued that a decree for injunction should have been granted as the appellants are in possession of plaint B schedule property, on appreciating the evidence, both the trial court and first appellate court found that appellants did not establish their possession of plaint B schedule property. It is a finding of fact. The finding of the first appellate court is final. It cannot be said that appreciation of evidence by the courts below was R.S.A.759/2007 9 perverse warranting interference by this court court in exercise of the powers under section 100 of Code of Civil Procedure. In such circumstance, appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006