IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 RSA.No. 189 of 2008() --------------------- AGAINST THE ORDER DATED 10/04/2007 IN AS.5/2004 of ADDL.SUB COURT, THALASSERY OS.649/2001 of PRL.M.C.,KANNUR. APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------- AZHIKODAN IBRAHIM ,S/O.MUHAMMED, AGED 51 BUSINESS, EZHAME AMSOM,AND DESOM. BY ADV. SRI.A.K.ABDUL AZEEZ RESPONDENTS: APPELLANTS/DEFENDANTS --------------------------------------------------- 1. MADAPURAYIL MUNEERA, W/O.O.P.ABDUL KHADER HAJI, AGED 45 NO OCCUPATION NEAR MARIYAMMAN KOIL, THALIKAVU. 2. O.P.ABDUL KHADER HAJI,AGED 55 BUSINESS NEAR MARIYAMMAN KOIL, THALIKAVU. KANNUR. 3. VALIYAKATH JAMAL HAJI, S/O. ABDULLA HAJI, BUSINESS, MADAYI AMSOM, PUTHIYANGADI DESOM, KANNUR. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/03/2008, ALONG WITH RSA NO. 260 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.189 & 260 OF 2008 =========================== Dated this the 27th day of March, 2008 JUDGMENT Appellant in R.S.A.189/08 is the plaintiff in O.S.649/2001. Plaintiff in O.S.559/01 is the sole respondent in R.S.A.260/08 and she is the first defendant in O.S.649/2001. O.S.559/2001 was filed by respondent Muneera claiming a decree for permanent prohibitory injunction. Appellant in R.S.A.189/2008 filed O.S.649/2001 for permanent prohibitory injunction. Both the plaint schedule property is one and the same. The case of the plaintiff in O.S.559/2001 is that her husband was originally a tenant of the building owned by the appellant in R.S.A.260/2008 and she was conducting a beauty parlour and while so appellant in R.S.A.260/2008 started construction of a building on the back side of that building and to get proper entrance to the newly constructed shopping complex, building occupied by the respondent was necessary R.S.A.189/08 & 260/08 2 and as per negotiation respondent agreed to receive Rs.2 lakhs and surrender the building occupied by her on the undertaking that she would be given a room in the first floor to conduct the beauty parlour with the same rent. After completion of the first floor of the newly constructed building on 5.1.1999, appellant handed over plaint schedule room to respondent on a monthly rent of Rs.375/- and she has been in possession of the property and has been running a beauty parlour and subsequently a cooli chit was prepared by appellant to be executed wherein rate of rent was shown as Rs.1000/- with a stipulation of further increase at the rate of 10% per annum and respondent was not prepared to execute the same and appellant was making all attempts to get possession of the building and he made a false complaint to the Kerala State Electricity Board and got the electricity disconnected temporarily and thereafter respondent filed a suit against the Kerala State Electricity Board and got the electricity restored. R.S.A.189/08 & 260/08 3 It was contended that on 16.9.1999 appellant along with his men destroyed the name Board and the furniture causing a loss of Rs.10000/- and he refused to issue a consent letter to the respondent to obtain licence and consequently respondent could not obtain a licence and appellant influencing the Municipal Authority managed to issue notice to the respondent stating that she is running the business without a valid licence and after getting notice respondent applied for a licence but it was refused by the Municipality and though an appeal was filed before the Municipal Commissioner that was also rejected and as against it a revision is filed before the appellate authority contending that appellant is attempted to trespass into the plaint schedule property. A decree for injunction was sought for. Appellant resisted the suit contending that plaint schedule shop room was never rented out to respondent and she is not a tenant of the building. It was contended that appellant was willing to give a room R.S.A.189/08 & 260/08 4 to respondent if she is ready to pay the rent, considering the facility and area of the room. While the foundation of the building complex was in progress appellant left India for Hajj pilgrimage. Respondent taking advantage of the situation illegally trespassed into the room and on 10.6.1999 when appellant returned to the native place and found the trespass, he lodged a complaint before the police but no action was taken and therefore appellant filed O.S.495/1999 for recovery of possession and during the pendency of the suits, respondent filed O.S.709/1999 against the appellant and Kerala State Electricity Board and during the pendency of both the suits, appellant filed a complaint before Municipality informing unauthorised and illegal act of respondent and on the basis of that complaint Municipal authorities called upon the respondent to apply for licence with supporting documents to prove her legal possession. As she failed to establish the legal position, she was directed to close the building R.S.A.189/08 & 260/08 5 and on 28.9.1999 that order was implemented and since business was closed down and possession was taken by the Municipality and it was handed over to the appellant and therefore he did not press O.S.495/1999 and as he is in possession of the property and he rented out the building to the appellant in R.S.A.189/08 who is in possession of property and respondent in R.S.A.260/08 is not entitled to a decree for injunction. Appellant in R.S.No.189/08 filed O.S.649/01 impleading plaintiff in O.S.559/01 as first defendant and appellant in R.S.A.260/08 as the third defendant contending that he is in possession of plaint schedule building as per Ext.B4 rent deed dated 30.10.2000 on a monthly rent of Rs.2000/- and he is conducting an Auto Consultancy and respondents in R.S.A.189/08 have no right to trespass into the property and first respondent attempted to trespass into the plaint schedule property and a decree for injunction was sought for, restraining respondents from trespassing into plaint schedule R.S.A.189/08 & 260/08 6 property. First respondent and her husband the second respondent filed a joint written statement reiterating the contentions raised in O.S.559/01 and contending that first respondent is in possession of the property and appellant in R.S.A.189/08 is not the tenant of the building and he is not entitled to the decree for injunction. 2. Learned Munsiff tried both the suits jointly. On the evidence of Pw1, DW1 and 2, CW1 and Exts.A1 to A20, B1 to B6, C1 and X1, learned Munsiff found that respondent is not the tenant of the plaint schedule building and she is only a trespassor. It was found that even if she is a trespassor, she is to be evicted by due process of law and evidence establish that when the suit was filed on 11.9.01 the Municipality had closed the shop room and she is not entitled to claim a decree for injunction. It was also found that plaintiff in O.S.649/01 is entitled to the decree for injunction. O.S.559/01 was dismissed and O.S.649/01 was decreed. The judgment was R.S.A.189/08 & 260/08 7 challenged before Sub Court, Thalassery in A.S.5/2004 and 7/2004. A.S.5/04 was filed against the judgment in O.S.649/01 and A.S.7/04 against the judgment in O.S.551/01. Learned Sub Judge on reappreciation of evidence found that fact that plaintiff in O.S.559/01 was in possession of the property was admitted. It was also found that even according to the appellant, plaintiff in O.S.559/01 was running a beauty parlour in the plaint schedule building without a licence and thereafter when the electricity supply to the room was disconnected plaintiff filed a suit against appellant in R.S.A.260/08 as well as Kerala State Electricity Board and got the electricity reconnected. It was also found that evidence establish that when the plaintiff in O.S.559/01 was running a beauty parlour, without a licence, appellant in R.S.A.260/08 lodged a complaint before Municipality alleging that beauty parlour is being run without obtaining licence. Municipality directed respondents to close down the beauty R.S.A.189/08 & 260/08 8 parlour and accordingly the plaint schedule shop room was closed down. Though appellants contended that Municipality has taken over to the possession of the building and handed it over to the appellant in R.S.A.260/08 who granted a lease in favour of appellant in R.S.A.189/08, under the Municipalities Act, the Municipal authorities have no power to take possession of the building from the possession of a third party and hand it over to the true owner and based on that, the owner is entitled to grant a new lease and appellant in R.S.A.189/08 is therefore not entitled to claim a decree for injunction. Learned Sub Judge found that even if plaintiff in O.S.559/01 is a trespassor she was not legally evicted by due process of law and so Plaintiff in O.S.649/01 is not entitled to a decree for injunction. Appeals were allowed and the decree granted in favour of appellant in R.S.A.189/08 was set aside and a decree for injunction was granted in O.S.559/01. They are being challenged in these appeals. R.S.A.189/08 & 260/08 9 3. Learned counsel appearing for appellants were heard. 4. The argument of the learned counsel is that the trial court after recording evidence and on proper appreciation of evidence, based on Ext.C1 report found that plaint schedule building is in the possession of appellant. It was argued that under Ext.B4 rent deed executed by appellant in R.S.A.189/08, in favour of appellant in R.S.A.260/08 and respondent in R.S.A.260/08 who admitted that the original tenanted building obtained by her husband was surrendered under Ext.B1 and failed to establish a subsequent lease of the plaint schedule building, should not have been granted a decree for injunction. It was argued that appreciation of evidence by the first appellate court was perverse and in such circumstance judgment of first appellate court is to be reversed. 5. On hearing the learned counsel, I do not find that any substantial question of law is R.S.A.189/08 & 260/08 10 involved in the appeal. 6. The fact that plaintiff in O.S.559/01 was in possession of the plaint schedule shop room was not in dispute. Even the written statement filed by appellant in R.S.A.260/08, in O.S.559/01 would establish that when the appellant had gone for pilgrimage and he returned, he found that plaintiff in O.S.No.559/01 trespassed into the plaint schedule building and is in possession of the building running a beauty parlour. It is also admitted case that while plaintiff was thus in possession of the building, electricity to the shop room was disconnected and she was compelled to institute a suit for reconnection of the electricity. It is also admitted case that appellant in R.S.A.260/08 filed a suit for recovery of possession, admitting possession of the plaintiff in O.S.559/01. What is claimed by appellant is that subsequently when the plaintiff in O.S.559/01 was running the beauty parlour without obtaining a licence from the Municipality, R.S.A.189/08 & 260/08 11 he lodged a complaint before the Municipality and Municipality issued a notice directing plaintiff to adduce evidence establishing her legal possession to enable her to get a licence and on her failure directed plaintiff to close the shop and pursuant to the order, the building was closed on 24.8.1998 and thereafter the building was entrusted to the appellant. As rightly found by first appellate court, under the Municipalities Act, the Municipality or its officers are not authorised to evict a person in possession of the shop room, even if he is conducting a business without a licence. In such circumstance, as rightly found by courts below when it is admitted case that plaintiff in O.S.559/01 was in possession of the property and inspite of a suit for recovery possession of that building, she was not legally evicted from possession of the building. Appellant in R.S.A.260/08 cannot claim that he obtained possession of the property ad thereafter granted a lease in favour of appellant. R.S.A.189/08 & 260/08 12 The argument of learned counsel is that Ext.C1 report establish that on the outer side of the plaint schedule shop room, a new board of Auto Consultancy was found by Commissioner and hence appellant in R.S.A.189/08 is in possession of the building. When it is admitted case that beauty parlour which was being run by respondent in R.S.A.No.260/08 was closed down by the Municipality as she is not having a licence , the fact that a board was placed outside the shop room will not enable appellant to contend that the building is in the possession of appellant. In such circumstance, first appellate court rightly found that appellant in R.S.A.189/08 is not entitled to a decree for injunction sought for and so long as the plaintiff in O.S.559/01 is not legally evicted, from the plaint schedule shop room, she is entitled to a decree for injunction as sought for in O.S.559/01. As there is no substantial question of law involved in the appeals, appeals are dismissed. R.S.A.189/08 & 260/08 13 The dismissal of the appeals will not disentitled the plaintiff in O.S.559/01 from seeking recovery of possession on the strength of title. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A..NO.168 /1995 --------------------- JUDGMENT 18TH MARCH,2008