IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 RSA.No. 336 of 2004 --------------------------------- AS.94/1999 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.153/1997 of PRL.M.C.,TRIVANDRUM .................... APPELLANT/1st RESPONDENT/1st PLAINTIFF: ACCAMMA EAPHEN, U.P.2/595, MUTTAMPARAMBATHU, SREEKARIYAM, CHERUVAKKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR SRI.A.ABDUL KHARIM RESPONDENTS/R2, R3& APPELLANT/D1 & D2/2nd PLAINTIFF: 1. ULLOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, OFFICE OF THE GRAMA PANCHAYATH, ULLOOR, THIRUVANANTHAPURAM. (NO LONGER IN EXISTENCE). 2. K.K. JOSEPH, THUNDIYIL, OPPOSITE MARUTHI SERVICE CENTRE, SREEKARIYAM, THIRUVANANTHAPURAM. 3. JAMEELA SHAJAHAN, J.S. NIVAS, UP.2/594, MUTTAMPARAMBATHU, SREEKARIYAM, CHERUVAKKAL VILLAGE, THIRUVANANTHAPURAM. ADDL.R4 IMPLEADED THE THIRUVANANTHAPURAM CORPORATION REP. BY ITS SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, CORPORATION BUILDINGS, M.G.ROAD, THIRUVANANTHAPURAM-33. Impleaded as per order dated 18.2.2010 in IA 2309/2004 BY SC SRI.N.NANDAKUMARA MENON FOR ADDL.R4 ADV. SRI.K.C.CHARLES FOR R2 SRI.A.BALAGOPALAN FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.336 of 2004 --------------------------------------- JUDGMENT First plaintiff in O.S.No.153/1997 on the file of Principal Munsiff's Court, Thiruvananthapuram is the appellant. Second plaintiff is the third respondent and respondents 1 and 2 are the defendants. The suit was instituted by the plaintiffs seeking a decree for declaration that the building permit issued to the second respondent by the first respondent Corporation is in violation of Rule 15(2) of Kerala Building Rules, 1984 and for a permanent prohibitory injunction restraining the second respondent from making any construction in violation of the provisions of Kerala Building Rules. The relief was subsequently amended claiming a mandatory injunction directing second respondent to dismantle plaint D schedule building portion or on their failure, to permit the plaintiffs to get it demolished through court. 2. Appellant is the owner of plaint A schedule property. Plaint B schedule property was purchased by the second plaintiff. It is their case that plaint A and B schedule properties RSA 336/04 2 are situated on the southern side of Thiruvananthapuram-Kollam National Highway and the property on the eastern side of plaint A and B schedule properties belongs to the second appellant. In between plaint A and B schedule properties and the property of the second respondent, there is a pathway starting from the southern side of the National Highway and proceeding along the eastern boundary of plaint B schedule property and ending on the north-eastern corner of plaint A schedule property. It is contended that there is a proposal for widening the pathway to make it a motorable access by surrendering portions of the properties on either side. Plaintiffs expressed their willingness to surrender. It is contended that second respondent started earth works for putting foundation for a multi storied building in his property without leaving sufficient space as provided under Rule 15(2) of Kerala Building Rules. Second respondent is not entitled to construct any building in violation of the Building Rules and first respondent is not entitled to issue any building permit in violation of the Building Rules and therefore, a declaration and injunction is to be granted. Subsequently, the plaint was got amended contending that second respondent had commenced construction of the building after the institution of the suit and RSA 336/04 3 report of the Advocate Commissioner establishes that it was done during the pendency of the suit and it is in violation of the Building Rules and therefore, it is to be removed by a mandatory injunction. 3. Respondents 1 and 2 filed separate written statements. On the evidence of PWs 1 and 2, DWs 1 and 2 and Exhibits A1 to A3 and C1 and C2, learned Munsiff granted a decree declaring that permit 193/96-97 dated 20.11.1996 issued by the first respondent in favour of second respondent is in violation of Rule 15(2) of Kerala Building Rules and therefore, it is void and as the building is constructed in violation of the Building Rules, it is liable to be demolished. Second respondent challenged the judgment before Additional District Court, Thiruvananthapuram in A.S.No.94/1999. Learned Additional District Judge, on re- appreciation of evidence, found that when the Commissioner appointed visited the property on 10.3.1997, he noted that foundation of the building is constructed and the entire extent of fifty two cents of the property of the second respondent was bounded by walls constructed with burnt bricks and plastered. The distance between the boundary wall and the north-western corner of the foundation is 2.94 metres. It was also found that RSA 336/04 4 the distance between the boundary wall and the south-western corner of the foundation is 1.84 metres. Learned Additional District Judge found that it is on that basis trial court found that there was violation of Rule 15(2) of Kerala Building Rules. Learned Additional District Judge, on appreciation of evidence, found that there is no sufficient satisfactory evidence to hold that there is violation of the provisions of Kerala Building Rules. It was found that there is no evidence to show the thickness of the boundary wall adjacent to the pathway to decide the distance between the street boundary and the building and the thickness of the boundary wall is also to be ascertained. The building faces the National Highway. The side yard faces the pathway used by the plaintiffs. Second respondent has left sufficient space for the side yard and more and in such circumstances, there is no violation of the Building Rules. Appeal was allowed. The decree and judgment granted by the learned Munsiff was set aside and the suit was dismissed. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant and second respondent were heard. 5. Argument of the learned counsel appearing for the appellant is that report of the Commissioner and finding of the RSA 336/04 5 learned Munsiff establishes that there is violation of the provisions of Building Rules and in such circumstances, learned Additional District Judge was not justified in reversing the decree. 6. On hearing the learned counsel and going through the judgments of the courts below, I find that the question whether there is violation of Rule 15(2) of Kerala Building Rules is a question of fact. Though trial court found that there is violation, appellate court, on re-appreciation of evidence, found that there is no violation. It is essentially a finding of fact based on appreciation of evidence. It cannot be said that any material fact was omitted to be taken note of by the learned Additional District Judge. Finding of fact cannot be challenged in the second appeal. I find no substantial question of law involved in the appeal. Appeal is dismissed. 3rd March, 2011 (M.Sasidharan Nambiar, Judge) tkv