IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 RSA.No. 113 of 2007() --------------------- AS.182/2006 of ADDL. DISTRICT COURT, PARAVUR OS.318/2004 of MUNSIFF COURT,ALUVA .................... APPELLANTS/RESPONDENTS 4 & 5/DEFENDANTS 4 & 5: ----------------------------------------------------------------- 1. ERNAKULAM DISTRICT CO-OPERATIVE BANK, ATHANI BRANCH, CHENGAMANAD KARA, REPRESENTED BY ITS BRANCH MANAGER. 2. THE PRESIDENT, ERNAKULAM DISTRICT CO-OPERATIVE BANK. KAKKANAD P.O., KOCHI-30. BY ADV. SRI.P.V.SURENDRANATH SRI.P.V.DIBU RESPONDENT(S)/APPELLANTS & R1 TO 3/PLAINTIFFS & D1 TO 3: -------------------------------------------------------- 1. ALPHONSA, W/O.DEVASSYKUTTY, THACHIL VEEDU, KUTHIATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 2. BABY, S/O.FRANCIS, THACHIL VEEDU, MEKKKAD KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK. 3. CHINNAMMA, W/O.BABY, THACHIL VEEDU, MEKKAD KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK. 4. VASUDEVAN NAIR, SON IN LAW OF NARAYANAN NAIR, THAMARAPPILLY VEEDU, RESIDING AT PARATTU SREEVILASATHIL, CHENGAMANAD KARA, ALUVA TALUK. 5.GEETHA,W/O.GANGADHARAN NAIR, VENNATTU KUTTIKKATTU VEEDU, EDANADU DESOM, CHOWARA VILLAGE, ALUVA TALUK. R.S.A.NO.113/2007 6.GANGADHARAN NAIR, VENNATTU KUTTIKKATTU VEEEDU, EDANADU DESOM, CHOWARA VILLAGE, ALUVA TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.113 OF 2007 ----------------------------------- Dated this the 30th day of September, 2010 J U D G M E N T The defendants 4 and 5 in a suit for injunction are the appellants. Respondents 4 to 6 are co-defendants and the respondents 1 to 3 are the plaintiffs in the suit. The trial court, non-suited the plaintiffs holding that no cause of action had been made out to claim the discretionary relief of decree of perpetual prohibitory injunction. The lower appellate court in the appeal preferred by the respondents 1 to 3/the plaintiffs reversed the dismissal of the suit and granted them a decree of injunction as applied for. Aggrieved thereby, the appellants/defendants 4 and 5 have preferred this appeal. 2. The 1st appellant/4th defendant is a bank, a tenant in occupation of the leased premises covered under a tenancy agreement with the defendants 1 to 3, in the first floor of a shopping complex. The 2nd appellant/5th defendant is the R.S.A.NO.113/07 2 President of the 1st appellant bank. Plaintiffs/respondents 1 to 3, admittedly, are owners of two rooms in the first floor of the above shopping complex. Access to the rooms owned by the plaintiffs, admittedly, is possible only through the staircase constructed in the shopping complex. There are two staircases, one on the eastern side and the other on the western side, both, after reaching a common platform then proceed as a common staircase. The plaintiffs laid the suit alleging obstruction of access through the staircase at the instance of the defendants 1 to 3, the owners of the shopping complex and also defendants 4 and 5, the present appellants stating that the eastern staircase had been blocked by the appellants by installing shutters and keeping them under lock and key. During the pendency of the suit, it was their further case that the western staircase was also closed by the defendants 1 to 3. While the defendants 2 and 3 contested the case of the plaintiff contending that they have only the right to use the eastern staircase, but not the western staircase, the present appellants claimed of having exclusive right over the eastern staircase. The trial court, after R.S.A.NO.113/07 3 considering the materials placed, holding that the plaintiffs have not made out the cause of action for the discretionary relief of injunction applied for, dismissed the suit. In the appeal, after re-appreciating the materials tendered and, more particularly, the title deeds in favour of the plaintiffs executed by none other than the 1st defendant disclosing that the staircase, without any specification made, could be used by the plaintiffs for access to the rooms transferred, held that an indefeasible right is conferred on them for using the staircase. The lower appellate court also found that the non-suiting of the plaintiffs, in the proved facts, holding that they have not made out a cause of action for the decree applied for, cannot be sustained as their right to use the staircase and infringement thereto have been established in the case. The lower appellate court, reversing the dismissal of the suit, thereupon, granted a decree of injunction in favour of the respondents 1 to 3 restraining the defendants including the appellants from causing any obstruction to the user of the staircase by the plaintiffs. Propriety and correctness of that decision is challenged in the appeal by the appellants, who, R.S.A.NO.113/07 4 as already stated, are only tenants in occupation of the leased premises in the first floor of the shopping complex. 3. The defendants 1 to 3/respondents 4 to 6 had filed a separate appeal impeaching the correctness of the very same decree, but on the death of the 1st appellant, it has been reported that the other appellants are not interested in prosecuting such appeal and, consequently, that appeal had been dismissed as abated. The present appellants, being the tenants, cannot claim a larger right than that of their owners, who have submitted to the decree of injunction passed in the suit in favour of the plaintiffs/respondents 1 to 3. Further more, on the facts proved in the case, transfer of the two rooms in favour of the plaintiffs covered by the title deeds produced in the case was much earlier to the lease in favour of appellants, by which, they got tenancy over some portions in the first floor of the shopping complex. Where it has been shown that under the title deeds executed in favour of the plaintiffs, a right is conferred on them to use the staircase without specifying whether it is eastern or western, the R.S.A.NO.113/07 5 tenant who has come in occupation later over some portions in the first floor of the building on the basis of a lease cannot contend that they have a right to cause obstruction to the plaintiffs, who are owners of two rooms in the first floor of the building. More so, when the defendants 1 to 3 have submitted to the decree passed by the trial court without any further challenge whatsoever. There is no merit in the appeal, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.113/07 6