IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 RSA.NO. 520 OF 2010() --------------------- {IN AS.63/2006 OF THE ADDITIONAL. DISTRICT COURT, THALASSERY IN OS.389/2003 OF PRINCIPALMUNSIFF'S COURT,KANNUR .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: ----------------------------------------------- 1. T.HARIDASAN,BULDING NO.IX-118, NEAR RADHAVILASAM U.P SCHOOL, PALLIKUNNU,KANNUR. 2. K.MEERA,BUILDING NO.IX-118, NEAR RADHAVILASAM U.P SCHOOL. PALLIKKUNNU,KANNUR. BY ADV. SRI.V.PREMCHAND RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------------- 1. P.T.DINESHAN,GOVINDALAYAM PALLIKKUNNU KANNUR. 2. PALLIKKUNNU THADATHIL SREE KORUMBA BHAGAVATHI KSHETRA PARIPALANA SAMITHI REP,BY ITS SECRETARY,M.PAVITHRAN, MANDOTHAN HOUSE,PALLIKUNNU P.O,KANNUR. ADV. SRI.ABRAHAM P.GEORGE & SMT.C.L.MANJU THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.NO. 520 OF 2010 :: ORDER ON I.A.No.1169/10 IN RSA.NO. 520 OF 2010 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 04.01.2011. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. ----------------------------------------------- R.S.A.No.520 of 2010 ---------------------------------------------- Dated this the 4th day of January, 2011 JUDGMENT The defendants in a suit for mandatory injunction have filed this appeal. Both the courts below, negativing the contentions raised by them, have granted a decree in favour of the respondents/plaintiffs directing the appellants to surrender vacant possession of the building. 2. The building belongs to a temple and forms part of it, which is known as “Kazhakappura” of the temple managed by a private devaswom. First plaintiff, who is the senior most member of a thavazhi, is stated to be administering the affairs of the temple as its manager. The 2nd plaintiff is a society formed by the members of the thavazhi and also public, for conducting the affairs of the aforesaid temple, including the festivals to be R.S.A.No.520 of 2010 :: 2 :: carried out there. The building involved happened to come under the occupation of the defendants on account of the permission to do so by the previous manager of the temple. Resisting the suit claim, the defendants, who are the husband and wife, contended that they are entitled to kudikidappu over the building. They also impeached the maintainability of the suit challenging the locus standi of the plaintiffs, to seek further reliefs canvassed without the Deity as a necessary party. Both the courts below, on the materials placed, concurrently found that the contentions raised by the defendants are meritless. It has also come out from the materials produced that the defendants had moved an application before the Land Tribunal, seeking and asserting their kudikidappu right, but it was turned down. R.S.A.No.520 of 2010 :: 3 :: When there is already a decision negativing the claim of kudikidappu, needless to point out, the challenge raised against the eviction on that ground was rightly turned down by the court below. When a claim of kudikidappu was canvassed for, it pre-supposes that they have admitted the title of the building with the plaintiffs and they are claiming only permissive occupation under the plaintiffs. Nothing has been placed before the court, nor even pleaded, other than the permissive right to occupy the building. The defendants have no right to continue in the building. That being so, once the permission is withdrawn, they are liable to surrender vacant possession to the owner. Locus standi of the plaintiffs to institute the suit to claim a decree of mandatory injunction impeached by the R.S.A.No.520 of 2010 :: 4 :: defendants has been concurrently found meritless by both the courts. On the materials placed. Presence of deity as a party to the suit where the 1st respondent is shown to be the manager for administering the temple was unnecessary to seek the relief of injunction. Judicial pronouncements rendered by this court on that issue have been applied by the courts below to conclude that the plaintiffs are entitled to seek the relief sought for in the suit. 3. There is no infirmity, leave alone any error in the concurrent decree passed by the courts below holding that the plaintiffs are entitled to a decree of mandatory injunction as against the defendants directing them to surrender vacant possession of the building. R.S.A.No.520 of 2010 :: 5 :: 4. The learned counsel for the appellants submitting that, a reasonable time is required to find out an alternate accommodation, requested for six months' time to vacate the building. Opposing the request, it was pointed out by the learned counsel for respondents that when execution proceedings were taken, the appellants sought time to surrender vacant possession within a period of six weeks and later filing this appeal, they got a stay of the execution of the decree. Whatever that be, having regard to the facts and circumstances involved, and also since the appellants have been occupying the building from 1977 onwards, they can be granted a reasonable time to vacate the building, subject to giving an undertaking before the trial court that, on expiry of a period of six months from R.S.A.No.520 of 2010 :: 6 :: today, they shall unconditionally vacate from the premises. The appellant are given six months' time to surrender vacant possession of the building on condition of the appellants giving an undertaking in the form of an affidavit by each of them before the execution court, unconditionally agreeing to surrender the building within the period fixed. Appeal is dismissed with direction as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//