IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 RSA.No. 432 of 2010() --------------------- AS.125/2004 of ADDL.DISTRICT COURT,KOTTAYAM OS.18/2001 of PRL.M.C., KOTTAYAM .................... APPELLANT/PLAINTIFF -------------------------- K.V.VISWANTAHAN, AGED 50 YEARS, S/O. VASUDEVA PANICKER, KUNNATHU KALATHIL HOUSE, KUMARAKOM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.S.JAYAKRISHNAN RESPONDENTS/RESPONDENTS: ---------------------------------- 1. K.E. SAITHUKUTTY, S/O. KUNJUMOHAMMED, JAINA MANZIL, PANAYAKKAZHIPPU KARA, MUTTAMBALAM VILLAGE. 2. THE KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTTAYAM. 3. SRI.PETER J.VALAVI, S/O.JOSEPH VALAVI, EDATHUMKALA HOUSE, ARTHOOTTY, KOTTAYAM KARA & VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------- R.S.A No.432 of 2010 -------------------------- Dated this the 19th May, 2010 J U D G M E N T Finding that the appellant had made unauthorised construction, the first defendant in O.S 18/2001 issued a notice to him. Claiming that there was no additional construction and that the repair works alone were carried out by him, the appellant instituted the suit. The Munsiff's court found that proceedings against plaintiff were taken under the Kerala Municipality Act and therefore the suit was barred under Section 563 of the said Act. Accordingly, the suit was dismissed. 2. The matter was carried in appeal as A.S No. 120/2004 and A.S 125/2004 by the tenant as well as the owner of the building. The appellate court independently evaluated the evidence and concurred with the trial court and dismissed the appeal. Against these concurrent findings, this second appeal has been preferred before this Court. R.S.A No.432 of 2010 2 3. The trial court has in fact gone into the question whether the alleged additional construction is true. It is also considered that the claim of the plaintiff before it that it was only repair works that were done and not additional construction. 4. In paragraph 10 of the judgment of the trial court, it is a clear finding that the constructions made are additional constructions and there is extension of plinth area of the building. The appellate court also found the same to be additional constructions and found that there was no reason to interfere with the judgment of the trial court. 5. In the light of these concurrent finding of facts, the claim of the appellant, that it is only repair works that finding cannot be accepted. Moreover, memo issued by the Municipality could have been replied by the appellant and put forward his case before the Municipality. Instead of doing so, he approached the court with suit. The suit is clearly barred under Section 563 of the Kerala Municipality Act. R.S.A No.432 of 2010 3 Learned counsel for the appellant was unable to show otherwise. This appeal is devoid of merits and it is dismissed in limine. P.BHAVADASAN, JUDGE ma R.S.A No.432 of 2010 4