IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 RSA.No. 217 of 2011() --------------------- AS.117/2006 of II DISTRICT COURT, PALAKKAD OS.575/2004 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/ APPELLANT/DEFENDANT --------------------------------------- P.K.MANI @ P.K.MANIKANDAN, S/O.KUNJU, AGED 40 YEARS NEAR MOYAN GIRLS HIGH SCHOOL, BEHIND ROTARY MOYAN HALL, COLLEGE ROAD, KOPPAM AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENTS/PLAINTIFF ------------------------------------ 1. O.T.GANGADHARAN NAMBIAR (DIED). 2. SARADA NAMBIAR, AGED 67 YEARS, W/O.LATE GANGADHARAN NAMBIAR, 10/154, COLLEGE ROAD, PALAKKAD. 3. G.RAMAKRISHNAN, AGED 46 YEARS, S/O.LATE GANGADHARAN NAMBIAR, KOUSAMBI, GAZIABAD, OPPOSITE ANANDA VIHAR, 15B T.NCR 2010. 4. DR.G.JAYAKRISHNAN, AGED 43 YEARS, S/O.LATE GANGADHARAN NAMBIAR, BARC, IRE, CAMPUS, BECH ROAD, QUILON. 5. GEETHA NAMBIAR, AGED 35 YEARS, W/O.VENU PILLAI, O.T.E. GROUP OF COMPANIES, P.O.BOX 175, POSTAL CODE, 17, SULTHANATE OF OMAN. 6. G.GOPIKRISHNAN, S/O.LATE GANGADHARAN NAMBIAR, "GEETHA", COLLEGE ROAD, PALAKKAD. BY ADV.SRI.M.GOPIKRISHNAN NAMBIAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.217 OF 2011 --------------------------------------------- Dated 27th May, 2011 JUDGMENT Defendant in O.S.575/2004 on the file of Munsiff court, Palakkad is challenging the decree for mandatory injunction and realisation of Rs.16,115/- granted by the trial court and confirmed by Additional District Court, Palakkad in A.S.117/2006. Plaintiff instituted the suit contending that plaint schedule articles were given to the appellant for the purpose of using them for conducting trade of fruits, under Ext.A1 agreement, for a period of 11 months on 27/3/2000. The period of license expired and under Ext.A2 notice the license was cancelled. Appellant did not surrender the articles and did not RSA 217/11 2 pay the license fee and sent a reply and defaulted the license fee. The plaintiff sought a decree for mandatory injunction directing appellant to restore the articles specified in the plaint schedule. 2. Appellant resisted the suit contending that the suit is not maintainable and the property transferred under Ext.A1 is a bunk shop attached to earth and it is an property and the relationship created under Ext.A1 is landlord-tenant relationship and it is not a license arrangement but a lease and therefore, appellant is protected under the provisions of Kerala Buildings (Lease and Rent Control) Act as he is a tenant and plaintiff is the landlord and therefore, plaintiff is not entitled to the decree sought for. 3. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A4 and B1 to B3 rejected RSA 217/11 3 the case of the appellant that it is a lease of building and held that Kerala Buildings (Lease and Rent Control) Act has no application and the plaint schedule articles were obtained on license and after the period of license appellant is liable to surrender the same and granted a decree for mandatory injunction directing the appellant to return the plaint schedule articles as well as Rs.16,115/- with interest at 6%, being the arrears of license fee. Appellant challenged the judgment before District Court, Palakkad in A.S.117/2006. During the pendency of the appeal, the plaintiff died and respondents were impleaded as his legal heirs. Additional District Judge on re-appreciation of the evidence dismissed the appeal. It is challenged in the second appeal. 4. As notice was ordered in the RSA 217/11 4 application to condone the delay in filing the appeal, respondents appeared. 5. Learned counsel appearing for the appellant and respondents were heard. 6. Argument of the learned counsel appearing for the appellant is that as is clear from Ext.A1, the subject matter of the agreement is a building and what was granted thereunder is a bunk shop for conducting trade for a period of 11 months providing that rent is to be paid and it shall not be sub leased and under Ext.A1 a tenant-landlord relationship has been created and what was granted thereunder is a lease of the building and appellant can be evicted only as provided under Section 11 of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 (hereafter referred to as “the Act”) and appellant can be evicted only by filing a petition under Section RSA 217/11 5 11 of the Act before the Rent Control Court. Relying on the definition of the building under Kerala Municipalities Act, 1994 and Kerala Municipalities Rules, 1999, learned counsel argued that finding of the courts below that the bunk shop granted on lease under Ext.A1 is not a building as defined under the Act is not sustainable and therefore, the decree is also unsustainable. 7. Learned counsel appearing for the respondents pointed that Ext.A1 makes it absolutely clear that what was granted thereunder are the articles scheduled in A and B, shown in Ext.A1. It was pointed out that as per schedule A the articles granted on license is a steel almirah having a length of 6½ feet, breadth of 3 feet and height of 7 feet painted in blue and second item is a wooden box and B schedule articles are a scale, locks, RSA 217/11 6 and glass jars and therefore subject matter of Ext.A1 agreement is not an immovable property but only movable properties. Learned counsel also pointed out that the body of the agreement also makes it clear that what was given on license is a steel box and articles for conducting trade and not a building as defined under the Act and therefore, appellant is not entitled to protection of the Act. Learned counsel also pointed out that definition of building under Kerala Municipalities Act and Rules has no application on the facts of this case and appellant cannot claim the protection under the Act and there is no merit in the appeal. 8. Ext.A1, a copy of which was made available by the learned counsel appearing for the appellant, makes it absolutely clear that the articles granted thereunder are scheduled RSA 217/11 7 as A and B. Schedule A consist of two items. First item is steel almirah having a measurement of 6½ x 3 x 7 feet painted in blue. Second item is a wooden box of 4 x 2½ x 2 feet. B schedule articles are ten glass jars, one scale and two Godrej locks. It cannot be said that any of A schedule articles or B schedule articles, is a building as defined under Kerala Act 2 of 1965. The Act defines, the building means “any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut or part of such building or hut, and let or to be let along with such building or hut inclusive of any furniture supplied by the landlord for use of such building or hut or any fittings, but does not include a room RSA 217/11 8 in a hotel or boarding house”. Though the building as defined under Kerala Municipalities Act and Rule includes a house, out-house, stable latrine, shed, hut, bunk and any other structure whether of masonry, wood, brick, mud, metal or any other material whatsoever, when such structure is not affixed to the earth, it can never be a building as defined under Section 2(1) of the Kerala Buildings (Lease and Rent Control) Act. Though learned counsel vehemently argued that as A schedule, almirah is described as “standing in a pit”, it is a building, I cannot agree. Whether the structure is inside a pit, on or over the ground, unless it is affixed to the earth, it cannot be a building. A wooden bunk not permanently affixed to the earth can be removed from one place to another. Such structure cannot be a building as defined RSA 217/11 9 under Section 2(1) of Kerala Buildings (Lease and Rent Control) Act. Therefore, argument of the learned counsel appearing for the appellant that appellant can be evicted only by an order passed under Section 11 of Kerala Buildings (Lease and Rent Control) Act cannot be accepted. No other contentions has been raised. In such circumstances, no substantial question of law is involved. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.