IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 RSA.No. 355 of 2009() --------------------- AS.83/2006 of ADDL. DISTRICT COURT, PARAVUR OS.449/1996 of MUNSIFF COURT, PARAVUR .................... APPELLANT ----------------------------- FRANCIS, S/O. VARGHESE, KOYIKKARA, EROOR VILLAGE, THRIPOONITHURA, ERNAKULAM DISTRICT, NOW RESIDING IN POOVAPPILLIPARAMBIL, KIZHAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENT ------------------------- BHAVANI R. MENON ALIAS BABY, W/O. RAMANKUTTY MENON, POOVAPPPILLIL VEETIL, KIZHAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 813 OF 2009 IN R.S.A. NO. 355 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 1.06.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 355 of 2009 ---------------------------------------- Dated this the 1st day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 83/2006 on the file of the Additional District judge, North Paravur which arises from O.S. 449/1996 on the file of the Munsiff Court, North paravur. The suit was filed for recovery of possession and injunction. The suit was decreed by the trial court and the same was confirmed in appeal. Hence the Second Appeal is filed by the defendant. The parties hereinafter referred to as defendant/appellant and plaintiff/respondent respectively as arrayed in the Suit. 2. The plaint schedule item Nos. 1 and 2 are devolved upon the plaintiff by Ext.A8 will. The title of plaintiff over the plaint schedule properties is not disputed by the defendant. The defendant is a domestic worker of the plaintiff. He joined the plaintiff in 1985 and started residence in one of the rooms adjacent to the cattle shed situated near the house of the plaintiff. The monthly salary of the defendant was fixed at Rs.200/- per month and subsequently the same was increased to Rs. 560/- per month. Later he occupied the plaint schedule room. 3. It is the case of the plaintiff that she had constructed a room for the purpose of storing coconuts and other things, in item No.1 plaint schedule property with concrete roofing and plastered walls. The R.S.A. 355 of 2009 -2- construction was actually meant for the residence of plaintiff's daughter and later the same was used for storing the above said things. Since the defendant was her worker and was continuously staying in one of the rooms adjacent to the cattle shed he was permitted to occupy the said room. After the occupation of the building it is alleged that the attitude of the defendant towards the plaintiff was changed. The defendant had demanded salary at the rate of Rs.1,000/- per month, the plaintiff was unable to agree with the demand. Since the defendant was demanding hike in salary he was asked to vacate the room . But the defendant refused to do so. The plaintiff also alleged that the defendant started obstructing her from taking yield from the plaint schedule property and doing any work therein. 4. The evidence consists of oral testimonies of PWs1 to 4, DWs 1 to 4 , Exts.A1 to A8, B1 to B4, C1 and X1 to X2. 5. According to the defendant the disputed building and the foundation is on its western side were constructed by him and he was granted permission to put up such a building by the plaintiff herself and the fact that the constructions were effected by him is proved by the evidence of DWs 2 to 4 and Exts. B1 and B4 and Ext.X1. It is the defendant's further case the he was permitted to put up the disputed building and had spent Rs. 50,000/- towards the cost of construction, as R.S.A. 355 of 2009 -3- the construction is of a permanent nature in accordance with the licence granted to him, he cannot be evicted in view of Section 60(b) of the Indian Easements Act. 6. The trial court after appreciating the facts and the evidence on record held that ordinarily such a prudent man(defendant) will not spend Rs.50,000/- and put up a building relying upon an oral permission alone and without seeking permission or a conveyance concerning the property and the evidence tendered by the defendant for not having obtained a written permission or registered conveyance was not at all convincing. The trial court also noted the fact that there was no evidence concerning his source of income to raise such an amount. Admittedly he is an agricultural worker having a salary of Rs.200 per month which was gradually enhanced to Rs. 560/- per month. The building was constructed in the year 1994. His marriage was in the year 1989 and he was maintaining his family right from 1989. It was not explained how he has mobilised the funds for the purpose of the construction. As he was an agricultural worker there was no chance for him to raise such an amount. The trial court also noticed that the defendant has no case that he has any other source of income to raise funds. So the trial court disbelieved his argument, that he has put up the disputed building by spending Rs. 50,000/- and subsequently in appeal by the lower appellate court. The trial court also examined the oral evidence tendered by the witnesses on R.S.A. 355 of 2009 -4- the side of the plaintiff. PW1 has tendered evidence that the disputed building and foundation near to it along with the well constructed by PW2 who was his worker. PW2 has tendered evidence that he used to do construction work on contract basis . PW2 also tendered evidence stating that the plaintiff had engaged him for the purpose of constructing a house for her daughter. It was also testified by him that along with the main construction of the residential building he has also given the task of putting up the disputed building for the purpose of storing coconuts and other firewood materials. The evidence tendered by PW1 and PW2 and other witnesses on both sides are discussed in detail by the trial court. The trial court on evidence drew an inference that when the construction was going on, the defendant who was admittedly a domestic worker of the plaintiff was residing in her property . 7. After the elaborate discussion of facts and analysis of all documents produced by the parties the trial court held that the evidence in totality would reveal that disputed building was put up by the plaintiff utilising her funds and the defendant was allowed to occupy the building. The same finding was recorded by the lower appellate court. Both the courts below found that the disputed building was put up by the plaintiff, that the defendant was allowed to occupy the the building, that no licence was granted to the defendant as claimed in the written statement and the defendant has not succeeded in proving that he had constructed the R.S.A. 355 of 2009 -5- disputed building by spending his own money in pursuance to the alleged licence. The evidence recorded by the trial court were again re- appreciated by the lower appellate court and concurred with the trial court's view and consequently dismissed the appeal. I have verified and discussed the facts, materials and evidence on record. I heard the counsel for the appellant in detail I find no error in recording of the evidence and the appreciation by the courts below There is no scope for interference with the judgment and decree and to invoke Section 100 of the C.P.C No questions of law much less any substantial question of law arises in this appeal. Therefore this appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 355 of 2009 ---------------------------- JUDGMENT 1st June, 2009