IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 RSA.No. 683 of 2011(F) ---------------------- AS.294/2005 of I ADDL.DISTRICT COURT, THRISSUR OS.1338/1998 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANTS/DEFENDANTS/DEFENDANTS ---------------------------------------------------- 1. HAMZA,AGED 46 YEARS,S/O.MUHAMMED, R/AT MATHILAKKATHU VEETIL HOUSE, KAIPAMANGALAM VILLAGE,KODUNGALOOR TALUK, THRISSUR DISTRICT. 2. DASAN,AGED 46 YEARS, S/O.VARGHESE KARIYATTIL HOUSE, VALAPPAD DESOM,NATTIKA AMSOM,CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. PREMKUMAR AGED 63 YEARS, S/O.KRISHNAN,NADUPURAKKAL,ALAKKAL,NATTIKA AMSOM, CHAVAKKAD TALUK,THRISSUR DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- 1. K.A.ABDUL SALAM,AGED 69 YEARS, S/O.AHAMMU,KALATHIPARAMBIL HOUSE, SUPREME ARCADE,NATTIKA AMSOM,CHAVAKKAD TALUK, THRISSUR DISTRICT,PIN 680 506. 2. V.A.ASHARAF,AGED 48 YEARS, S/O.VALIYAKATHU ABDUL RAHIMAN,KATOOR VILLAGE, KATOOR DESOM MUKUNDAPURAM TALUK,THRISSUR DISTRICT,PIN 680 702. 3. SIDHARTHAN,AGED 69 YEARS, S/O.VALLATH KANNAPPAN,THALIKKULAM,CHAVAKKAD TALUK,THRISSUR ,PIN 680 506. 4. ASOKAN,AGED 62,S/O.KALLAT KONNAKUTTY, CHAVAKKAD,THRISSUR,PIN 680 506. 5. GOPINATHAN,AGED 42 YEARS, S/O.CHEMBIPARAMBIL KRISHNAN KUTTY, CHAVAKKAD,THRISSUR,PIN 680 506. 6. SANKARANARAYANAN,AGED 64 YEARS, S/O.CHEMBIPARAMBIL KRISHNAN KUTTY, CHAVAKKAD,THRISSUR,PIN 680 506. 7. C.R.VIJI,AGED 66 YEARS, S/O.CHENTHARA RAVEENDRAN,ALLAPPAD, CHAZOOR, THRISSUR,PIN 680 506. 8. SREEKUMAR,AGED 46 YEARS, S/O.KOCHATHU MADHAVAN,THALIKKULAM,CHAVAKKAD, THRISSUR,PIN 680 506. 9. V.VELAYUDHAN,AGED 50 YEARS, S/O.VANNERIPARAMBIL AMMALU AMMA, NATTIKA, CHAVAKKADU,THRISSUR,PIN 680 506. 10. M.R.RAJAGOPAL,AGED 50 YEARS, S/O.MARATTU RAMANKUTTY, CHAVAKKADU,THRISSUR,PIN 680 506. 11. SOMASUNDARAN.V,AGED 50 YEARS, S/O.CHANGARAMKULATHU GOPALAKRISHNAN NAIR, CHAVAKKADU,THRISSUR,PIN 680 506. 12. P.J.AUGUSTINE ,AGED 47 YEARS, S/O.PADAMADAN JACOB,CHAKKARAPPADAM, PERINJANAM,KODUNGALLOOR, THRISSUR ,PIN 680 664. 13. K.R.JAYASEELAN,AGED 47 YEARS, S/O.KONANCHERY RAMAKRISHNAN,PERINGOTTUKARA, THRISSUR,PIN 680 565. 14. K.P.RAVIPRAKASH,AGED 45 YEARS, S/O.KULAPPARAMBATH PANKAJAKSHAN, KAIPAMANGALAM,KODUNGALOOR,THRISSUR, PIN 680 681. 15. ARUNA,AGED 64 YEARS, W/O.MADMAVAN,NATTIKA,CHAVAKKADU, THRISSUR,PIN 680 506. 16. JAYAPRAKASHAN,AGED 61 YEARS, S/O.CHEMBIPARAMBIL RAMAN KUTTY, NATTIKA, CHAVAKKADU, THRISSUR ,PIN 680 506. 17. BABY,AGED 56 YEARS, W/O.RAMAKRISHNAN,NATTIKA,THRISSUR PIN 680 566. 18. SASIDHARAN ,AGED 64 YEARS, S/O.CHEMBIPARAMBIL RAMAN KUTTY,NATTIKA, CHAVAKKADU, THRISSUR ,PIN 680 506. 19. SOMASUNDARAN,AGED 51 YEARS, S/O.CHEMBIPARAMBIL RAMAN KUTTY, NATTIKA,CHAVAKKADU, THRISSUR ,PIN 680 506. ADV. SRI.K.RAMACHANDRAN FOR R1 SRI.S.SREEDEV FOR CAVEATOR SRI.P.RAMACHANDRAN SMT.S.JAYASREE FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.683 of 2011 ............................................ DATED THIS THE 5th DAY OF SEPTEMBER, 2011 JUDGMENT Defendants 2, 4 and 11 in O.S.1338 of 1998 on the file of Munsiff Court, Chavakkad are the appellants. First respondent is the plaintiff. Appellants are the tenants of the shop building belonging to the respondent. The dispute is with regard to the varandah portion of the respective rooms rented out to the tenants. The respondent would contend that appellants are causing obstruction to the peaceful enjoyment of the varandah by placing their articles in the varandah. The defendants contended that they have got a right to use the varandah for part of the leasehold premises and it is being used since the inception of the lease. 2. Learned Munsiff on the evidence dismissed the suit finding that defendants have a right to use the varandah. First respondent challenged the decree before First Additional District Court, Thrissur. Learned Additional District Judge on reappreciation of the evidence granted a decree in favour of first RSA 683/2011 2 respondent restraining the defendants by a permanent prohibitory injunction from putting articles in the plaint schedule property. It is being challenged in this second appeal by three of the defendants in the suit. 3. Learned counsel appearing for appellants and learned counsel appearing for the first respondent who appeared by lodging a caveat were heard. The argument of the learned counsel appearing for appellants is that from the date of inception of the lease they have been using the varandah and first respondent is not entitled to a decree for injunction restraining the appellants from using the varandah. The argument is that the varandah is part of the lease hold building and in any case it is an amenity available to them as building tenants and therefore the decree is unsustainable. Learned counsel would also argue that there was no prayer before the trial court for a decree restraining the defendants from putting articles in the varandah and on the other hand, the relief sought for was to restrain defendants from causing obstruction to the peaceful enjoyment of the plaint schedule property and hence the decree granted by the first appellate court, without a plea, is not RSA 683/2011 3 sustainable. 4. Learned counsel appearing for the first respondent pointed out that Ext.A1 to A7 the rent deeds executed by tenants establish that varandah does not form part of the lease hold rooms and the tenants were granted only a right to use the varandah as a passage for ingress and egress to the respective rooms. 5. When the rent deeds do not provide any right to the tenants to store the articles, keep their articles in the varandah, appellants are not entitled to claim that they have a right to put articles in the varandah. The decree granted by first appellate court is only restraining the appellants from putting articles in the varandah. Ext.A1 to A7 rent deeds establish that varandah does not form part of the leasehold room. They further establish that the tenants were permitted to use the varandah only as a passage for ingress and egress to the respective shop rooms. When the only right provided is to use the varandah as a passage and that right is not curtailed by the decree, appellants cannot have a valid grievance against the decree. If the articles are kept in the varandah, it will definitely curtail the rights of the Landlord RSA 683/2011 4 over the varandah. In such circumstances, I find no substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk