IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 SA.NO. 398 OF 1998(E) {A.S.NO.106/87 OF THE SUB COURT, HOSDRUG IN O.S.NO.21/83 OF THE MUNSIFF'S COURT, HOSDRUG} ...................... APPELLANT(S)/APPELLANTS/DEFENDANTS: 1. H.MOHAN PAI, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER H.GOVARDHANA PAI. 2. H.GOVARDHANA PAI (DIED) * APPELLANTS ARE THE CHILDREN OF DAMODARA PAI AND RESIDING AT NEAR MARIYAMMAN KOVIL, HOSDRUG VILLAG,E P.O.KANHANGAD, HOSDRUG TALU, KASARAGOD DISTRICT. ADDITIONAL 3RD APPELLANT IMPLEADED: NAVEENCHANDRA PAI, S/O.LATE H.GOVARDHANA PAI, AGED 40 YEARS, RESIDING NEAR MARRIAYAMMA TEMPLE, HOSDRUG VILLAGE, KANHANGAD, HOSDRUG TALUK, POST KANHANGAD. IMPLEADED AS PER ORDER DT 20.1.06 IN I.A.1281/06 BY ADV. SRI.D.KRISHNA PRASAD RESPONDENT(S)/RESPONDENT/PLAINTIFF: K.V.KUNHAMBU, S/O.P.KANNAN NAIR, EXTENSION OFFICER, IRDP BLOCK DEVELOPMENT OLFFICE, KANHANGAD, RESIDING AT KANHANGAD VILLAGE, HOSDRUG TALUK, POST KANHANGAD. ADV. SRI.M.C.NAMBIAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON 17/09/2010, DELIVERED THE FOLLOWING: SA.NO. 398 OF 1998 :: ORDER ON C.M.P.No.1128/98 IN SA.NO. 398 OF 1998 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 17.09.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. --------------------------------------- S.A.No.398 of 1998 --------------------------------------- Dated this the 17th day of September, 2010 JUDGMENT Defendants in O.S.No.21/83 on the file of the Munsiff's Court, Hosdurg, have filed this appeal. 2nd defendant/2nd appellant, after the filing of this appeal, had passed away. On the death of the 2nd defendant/2nd appellant, none has been brought on record by way of substitution. However, later, an impleading petition was filed by a stranger, I.A.No.128/2006, seeking his impleadment as additional 3rd appellant in the appeal. The first appellant not objecting to such impleadment, that third party was impleaded in the appeal as additional 3rd appellant. The additional appellant had sought for impleadment in the appeal setting forth a case that he is one of the co-owners of the property involved in the proceedings, and as such he should also be heard in the matter. S.A.No.398 of 1998 :: 2 :: 2. Concurrent decision rendered by the courts below in favour of the respondent/plaintiff decreeing his suit for permanent prohibitory and mandatory injunction is challenged in this appeal. His claim for injunction both prohibitory and mandatory against the defendants was based on the allegation that he is in occupation of a room in the upstairs of a building bearing door No.K.P.W.-IV 553, belonging to one Reghunatha Pai, and the way to that room through a staircase is under threat of obstruction by the reconstruction work carried out by the 1st defendant over his building situate to the north of his room, under the supervision of the 2nd defendant, the Power of Attorney Holder of the first defendant. According to the plaintiff a common staircase is used up to a certain height for entry into the room under his occupation and also to the building of the 1st defendant. After a few steps in common, the staircase take diversion in two directions to the respective rooms. By the reconstruction work carried S.A.No.398 of 1998 :: 3 :: out by the defendants, the old staircase was partly demolished and now in the place of that staircase, they are attempting to construct a concrete staircase blocking his access to the room in his occupation, was the grievance set forth by the plaintiff for the prohibitory decree of injunction against the defendants. With a view to block his entrance, in the reconstruction work of the staircase they have put up a slab across the door of his room and has thus blocked his entry into such room was the allegation raised by the plaintiff for removal of that concrete slab by a decree of mandatory injunction. The 2nd defendant, the Power of Attorney Holder of the first plaintiff, filed a written statement disputing the allegations raised by the 1st plaintiff that there was a common staircase, and contended that no blockage had been caused to the entry into the room of the plaintiff. The remedy of the plaintiff, according to the defendants, is only against his landlord the owner of the room for providing facility for access to S.A.No.398 of 1998 :: 4 :: the room situate in the upstairs of the building and not through the staircase stated in the plaint, which, according to the defendants, was not used used in common. The 1st defendant filed a memo adopting the contentions raised by the 2nd defendant in his written statement. 3. On the pleadings of the parties as above, the trial court settled the issues in which the entitlement of the plaintiff to use the staircase and also whether the defendants have blocked the staircase used by him were examined to consider his claim for injunction, both prohibitory and mandatory. On the materials placed, the learned Munsiff finding that the plaintiff has established the claims canvassed in the suit granted him a decree for permanent prohibitory injunction restraining the defendants from obstructing his access through the staircase to his room in the upstairs of the building and also a mandatory injunction directing the defendants to demolish and remove the concrete slab put across the door S.A.No.398 of 1998 :: 5 :: of the plaintiff's room as identified by the advocate commissioner, more particularly marked as 'D' in Ext.C2 sketch. Incidentally, it is also to be pointed out that the learned Munsiff has also taken note that in sheer disregard and violation of the court's order restraining the defendants from further constructing the staircase till the disputes are resolved in the trial of the suit, the defendants have carried further construction. Further construction so made by the defendants reported by the advocate commissioner was also taken note of by the court to observe that the defendants have carried out such constructions as if they are above the law. 4. The decree passed by the trial court was challenged by the defendants preferring an appeal before the Sub Court, Hosdurg as A.S.No.106/87. The learned Sub Judge, after re-appreciation of the materials, concurring with the findings of the learned Munsiff confirmed the decree without any modification. Challenge S.A.No.398 of 1998 :: 6 :: in the appeal is against the decree of injunction, both prohibitory and mandatory, granted in favour of the respondent/plaintiff by the learned Munsiff as confirmed by the first appellate court. 5. I heard the counsel on both sides. 6. The right of the plaintiff or his landlord over the staircase in respect of which the equitable relief of injunction was canvassed for, has not been established in the case is the main thrust of attack raised by the learned counsel for the appellant to assail the decree of injunction rendered in favour of the plaintiff. No documentary evidence was let in by the plaintiff to show that he or his landlord has any title or right over the staircase which, admittedly, is used as a passage for the building of the first defendant. The documents produced before the first appellate court by the defendants showing that the staircase belonged to the first defendant exclusively, was not considered nor even referred to by that court and, thus, S.A.No.398 of 1998 :: 7 :: the decision rendered by that court confirming the decree of the trial court is erroneous and unsustainable inasmuch as vital documents having a bearing on the disputed question were not looked into, according to the counsel. The plaintiff has not claimed any right of easement or such other right over the staircase and that being so, the decree of injunction sought for by him on the basis of mere user especially on the admitted facts that he is only a tenant in occupation of a room in the nearby building, it is submitted, is clearly unsustainable. 7. Perusing the judgments rendered by the courts below, with reference to the submissions made by the learned counsel for the appellants, to challenge the decree granted in favour of the plaintiffs, I find, the present appeal is nothing but an experimental venture to perpetuate the illegalities and unjustified acts committed by the appellants/defendants in blocking the passage through a staircase to the room occupied by the plaintiff in S.A.No.398 of 1998 :: 8 :: the upstairs of a building. Suit for injunction filed by the plaintiff as early as in 1983, despite the grant of the decree in his favour concurrently by the two courts, which in effect, was sought for to undo the injustice and grievous injury caused to him over the blockage made and obstruction caused to his entry to a room by causing demolition of the existing staircase and putting up a new staircase with a concrete slab constructed across the door to his room, is seen prolonged by prosecuting this appeal. A third party, against whom no relief of injunction was canvassed by the respondent/plaintiff has also joined as a co-appellant in this appeal, getting himself impleaded as additional 3rd appellant, setting forth a case that he has some co-ownership over the staircase, disputes relating to which are involved in the suit. Whatever be his right over the staircase, so far as no decree of injunction was canvassed against him by the plaintiff, he has no locus standi to impeach the decree of injunction granted in S.A.No.398 of 1998 :: 9 :: favour of the plaintiff against the defendants in the suit. His impleadment was not objected to by the surviving appellant/ 2nd defendant and hence permitted to be carried out by this court, does not confer on him any right to impeach the correctness of the decree of injunction granted against the defendants in the suit. There is absolutely no merit in the arguments urged that the plaintiff has to show the title of his landlord over the staircase to seek an injunction applied for in the suit. He need only show that he has been using the staircase for access to his room situate in the upstairs portion of a building and also the threat or injury suffered by him on account of the demolition and reconstruction over the existing staircase by the defendants. On the materials placed especially with reference to the reports and sketch produced by the advocate commissioner after conducting local inspection over the site on different occasions both the courts have found that obstruction had been caused to S.A.No.398 of 1998 :: 10 :: the entry of the plaintiff to his room in the upstairs of a building by the construction of a slab across the door of that room. The commissioner in Ext.C1 report stated that the concrete slab put across the door almost touched the door frame and for entry into the room one has to bend down. The report of the commissioner coupled with the evidence of Pws.1 and 2 convincingly proved that such obstruction was caused a few days prior to the institution of the suit. The plaintiff is in occupation of the room in the upstairs of the nearby building of the 1st defendant situated to the north, and he has been using the common old staircase which, after few steps deviated to the respective buildings, the room occupied by the plaintiff and the 1st defendant, has been admitted by the 2nd defendant when examined as DW.1. Plaintiff continued in occupation of the room for more than 22 years as a tenant in the upstairs portion of building at the time of institution of the suit. Coupled with the above, the several attempts made S.A.No.398 of 1998 :: 11 :: by him filing complaints before the panchayat authorities to prevent the defendants from causing obstruction to the passage to his room before the institution of the suit, which are proved by the documentary materials produced and also the illegal acts committed by the defendants flouting the prohibitory interim injunction passed by the court in the suit restraining them from continuing with further constructions which was not heeded to, persuaded the trial Judge to observe that the defendants considered themselves to be above the law. It is also seen from the judgment of the trial Judge, who had the opportunity to see the plaintiff, that he is a six footer, and his evidence that he has to literally crawl in, to get into the room, due to the putting up of the slab across the door of the room, has to be accepted as true. The decree granted by the trial Judge to the plaintiff both prohibitory and mandatory injunction against the defendants, it is seen, is fully supported by the proved facts established in the case. That decree was S.A.No.398 of 1998 :: 12 :: rightly and correctly confirmed by the first appellate court. Challenge against the concurrent decision so rendered by the courts below, by way of the present appeal, is found to be unworthy of any merit. The appeal is dismissed. In the given the facts and circumstances of the case, where the appeal is found to be frivolous and an experimental venture to prolong the litigation and thus deny the fruits of the decree to the plaintiff continuing with the illegal obstruction caused to the passage to his room under his occupation, the additional 3rd appellant is directed to pay a sum of Rs.10,000/- as costs to the plaintiff. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//