IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 RSA.No. 200 of 2011 --------------------------------- AS.154/2008 of DISTRICT COURT, ALAPPUZHA OS.332/2002 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. JESSY VAS, W/O. LATE LAWRENCE, AGED 73 YEARS, VAKATHUKARAN, PURAYIDOM, MARKET WARD, ALAPPUZHA. 2. BENNY VAS S/O.LAWRANCE, AGED 35 YEARS, -DO- -DO- 3. RINI VAS D/O. JESSY VAS, AGED 40 YEARS, -DO- -DO- BY ADV. SRI.K.N.VENUGOPALA PANICKER RESPONDENT/APPELLANT/PLAINTIFF: V.C.ZACHARIA S/O.LATE V.Z CHERIAN, VAKATHUKARAN HOUSE, MARKET WARD, ALAPPUZHA, ALAPPUZHA P.O. 688001. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.200 of 2011 --------------------------------------- JUDGMENT Defendants in O.S.No.332/2002 on the file of Munsiff's Court, Alappuzha are the appellants. Respondent is the plaintiff. The suit was instituted for a permanent prohibitory injunction, which was subsequently amended, seeking a decree for mandatory injunction. Plaint schedule property was obtained by the respondent under Exhibit A2 will. It is contended that appellants were conducting trade in a temporary shed in the road puramboke near Item No.1 of plaint schedule property and after Government officials demolished the same, they trespassed into a portion of the plaint schedule property and put up a structure therein which is sought to be removed by the mandatory injunction. The suit was originally filed seeking a decree for permanent prohibitory injunction restraining the appellants from trespassing into the plaint schedule property contending that they are attempting to trespass into Item No.2 of plaint schedule property. Appellants contended that as per order in R.C.P.No.56/1973, which was upheld in R.C.A.No.69/1995, RSA 200/11 2 respondent evicted the appellants from the plaint schedule property for re-construction of the building and the building was demolished. But the building was not re-constructed. Therefore, appellants filed I.A.No.173/1994 before Rent Control Court for a direction to the respondent to re-construct the building or permit the appellants to construct a building. Though it was dismissed, in appeal, Appellate Authority allowed that application. A revision was filed and an order of stay was obtained from this Court against that order. It is contended that appellants are petty coffin sellers and respondent is not entitled to the decree for mandatory or permanent prohibitory injunction. 2. Learned Munsiff, on the evidence of PWs 1 and 2 and DWs 1 to 3 and Exhibits A1 to A3 and C1 to C3, found that plaint schedule property belongs to the respondent and appellant have no right to put up any structure in the plaint schedule property. A decree was granted directing appellants to remove the structure in Item No.2 of plaint schedule property providing that it is subject to the orders to be passed in revision which is pending. Appellants challenged the judgment and decree before District Court, Alappuzha in A.S.No.154/2008. Learned District RSA 200/11 3 Judge, on re-appreciation of evidence, confirmed the judgment of the trial court and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. Argument of the learned counsel is that respondent did not approach the court with clean hands and therefore, should not have granted a decree for mandatory injunction. Learned counsel also argued that there is no evidence to prove that the structure sought to be removed from Item No.2 of plaint schedule property is not within the road puramboke, but within the property obtained by the respondent under Exhibit A2 and therefore, the decree is not sustainable. Argument of the learned counsel is that though the Commissioner identified the property, evidence is insufficient to prove that property was properly identified and in such circumstances, the decree is not sustainable. 5. Courts below appreciated the evidence in the proper perspective. Though appellants were tenants of a portion of the plaint schedule property, it is the admitted case that as per order in R.C.P.No.56/1973, which was confirmed by the Appellate RSA 200/11 4 Authority, appellants were evicted from the building and the building was subsequently demolished on 23.6.1993. As directed by the Rent Control Court, respondent did not re-construct the building and I.A.No.173/1994 was filed by the appellants before Rent Control Court under the proviso to Section 11(4)(iv) of Kerala Buildings (Lease and Rent Control) Act for a direction to the respondent to re-construct the building or for permission to the appellants to construct the building. Though it was dismissed by the Rent Control Court, Appellate Authority allowed that application. When the suit was instituted, the matter was pending in revision before this Court. Learned counsel appearing for the appellant submitted that subsequently, the revision was disposed with certain directions. Therefore, appellants cannot construct any building or any structure in the plaint schedule property based on the earlier tenancy and the structure, if any, put up is definitely liable to be removed. True, if the Rent Control Court permit the appellants to construct any structure, the decree will not effect that right as it provides that decree is granted subject to the decision of this Court in the revision. RSA 200/11 5 6. The only argument of the learned counsel is that property was not properly identified and therefore, there is no evidence to prove that the structure, which is directed to be demolished, is within the property obtained by the respondent under Exhibit A2. Learned Munsiff and learned District Judge elaborately considered that question. Based on Exhibit C1 report and C3 plan, trial court and the first appellate court found that the property obtained by the respondent under Exhibit A2 was properly identified and the structure directed to be demolished forms part of that property. That finding of fact cannot be challenged in the second appeal. No substantial question of law is involved in the appeal. Appeal is dismissed. 21st February, 2011 (M.Sasidharan Nambiar, Judge) tkv