IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 RSA.No. 413 of 2009() --------------------- AS.172/2005 of PRL.S.C.,THALASSERY OS.53/2001 of MUNSIFF COURT, THALASSERY .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2 ---------------------------------------------------- 1. N.BALAKRISHNAN,S/O KUMARAN TEACHER, GOURIVILASAM U.P. SCHOOL, THEKKEILAPEEDIKA THAZHE CHOVVA, P.O. CHOVVA KANNUR. 2. ERAKKODAN SUJATHA W/O CHANDRAN NALUTHENGIL HOUSE P.O MOUWANCHERY, TEACHER CHEMBILODE THAZHE ANGANWADI, CHEMBILODE AMSOM DESOM BY ADV. SRI.P.V.SURENDRANATH RESPONDENTS/RESPONDENTS/PLAINTIFFS ADDITIONAL D3 AND D4 --------------------------------------------------------------------------- 1. V.P. PAVITHRAN, S/O KELAN , THACHILERI HOUSE, P.O KOYYODE, CHEMBILODE AMSOM DESOM . 2. T. PRAKASAN S/O KELAN , DRIVER CHEMBILODE AMSOM DESOM 3. K.BABURAJ, S/O KRISHNAN PRESIDENT CHEMBILODE THAZHE ANGANWADI COMMITTEE, CHEMBILODE AMSOM DESOM . 4. THE SECRETARY CHEMBILODE GRAMA PANCHAYAHTH CHEMBILODE AMSOM DESOM ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON 25/03/2009 PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 413 of 2009 ---------------------------------------- Dated this the 25th day of May, 2009 JUDGMENT Sri.K.V.Pavithran appears for respondents 1 and 2. 2.. This Second Appeal is directed against the judgment and decree dated 17.12.2007 in A.S. 172/2005 on the file of the subordinate Judge's Court, Thalassery and the judgment and decree dated 30.6.2005 in O.S. No. 53/2001 on the file of the Munsiff Court, Thalassery. The decree passed by the trial court directing the defendants to remove the plaint schedule shed, to quit plaint B schedule property and the mandatory injunction passed was confirmed in appeal by the lower appellate court. Hence this Second Appeal. The defendants in the suit are the appellants herein. The parties hereinafter referred to defendants/appellants and plaintiffs /respondents. The suit was filed for permanent injunction, recovery of possession and damages. 3. Ext.A1 is the title deed of the property. As per Ext.A2 the disputed property is allotted to the share of the 2nd plaintiff. It is the plaintiff's case that they have granted permission to the 1st defendant to erect a small shed for running an Anganwadi since 1986 and pursuant to the permission, the defendants constructed the said shed and they have been running the Anganwadi and continued their occupation as licecees. It is the further case of the plaintiffs that the defendants have agreed to R.S.A. 413 of 2009 -2- vacate the premises as and when demanded by the plaintiffs. It is further contended that the defendants have no right to continue their occupation as licencees. Therefore the plaintiffs have sought for a decree for mandatory injunction, recovery of possession and damages. 4. The trial court considered the oral evidence tendered by the parties and examined in detail the respective contentions of them. Ext.C1 and C2 are the report and plan submitted by the Commissioner. The trial court noticed that no evidence was adduced from the side of the defendants contrary to the evidence adduced by the plaintiffs. The trial court also relied on Exts. C1 report and C2 plan. Ext.C1 and C2 shows that the plaint B schedule property is a part of plaint A schedule property and the same is situated on the south-eastern corner of the plaint A schedule property. The trial court also concluded that there is no chance that the shed (Anganwadi) is situated in the property acquired by the Government. No scrape of paper produced from the side of the defendants to show that the plaint schedule property belongs to the Revenue authorities. The defendants have no case that they have paid rent or licence fee to the plaintiffs. 5. After examining the oral and documentary evidence of both parties, the trial court concluded that the status of the defendants are that of licencees and that the conduct of the Anganvady is a privilege extended for the welfare of the children. The trial court also noticed that the plaintiffs have terminated the lincence of the defendants R.S.A. 413 of 2009 -3- 6. I have heard the parties and examined the respective contentions of them and the evidence on record. I find that the conclusion and finding arrived at by the trial court is correct and the lower appellate court rightly held that there is no necessity to interfere with the findings arrived at by the trial court. I am also of the view that the facts , circumstances and evidence are re-examined in detail in the right perspective by the lower appellate court. I find no grounds to invoke Section 100 of the C.P.C This Second Appeal fails and accordingly dismissed. 7. The counsel for the defendants/appellants submitted that the Anganwady is functioning since 1983. The counsel prayed for six months time to vacate the premises. The request of the counsel is justifiable in the facts and circumstances of this case. . 6 months time is granted to the defendants/appellants to vacate the premises on condition that the defendants/appellants shall file an undertaking in the form of an affidavit within 4 months from today before the trial court unconditionally agreeing to vacate the premises within the time limit allotted by this Court. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 413 of 2009 ---------------------------- JUDGMENT 25th May, 2009