IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 RSA.No. 1149 of 2010() ---------------------- AS.122/2004 of II ADDL. DISTRICT COURT, PALAKKAD OS.771/2001 of PRINCIPAL MUNSIFF COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------------------------ 1. SURESHKUMAR, S/O.MADHAVAN. 2. ASHA, W/O.SURESHKUMAR. BOTH ARE RESIDING AT AMBIKALAYAM, POOJA NAGAR, AKATHETHARA AMSOM, PALAKKAD-678 008. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.C.A.ANOOP. RESPONDENT(S): RSPONDENT/PLAINTIFF: ----------------------------------------------------------------- K.S.SREEKUMARA MENON, S/O.SUKUMARA MENON, RESIDING AT 'SRUTHI', POOJA NAGAR, AKATHETHARA AMSOM, PALAKKAD TALUK, PIN 678 008. BY ADVS. SRI.D.KRISHNA PRASAD, SRI.S.SACHITHANANDA PAI, SMT.O.K.SANTHA, SMT.S.SANTHY. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.1149 OF 2010 ............................................ DATED THIS THE 28th DAY OF MARCH, 2011 JUDGMENT The defendants in O.S.771 of 2001 on the file of Munsiff Court, Palakkad are the appellants. Plaintiff is the respondent. Respondent instituted the suit seeking a decree for mandatory injunction for demolition of the sun shade constructed in violation of the Building Rules alleging that the sun shade is constructed in such a way that entire rain water will fall into the property of the respondents. It is contended that as the construction is in violation of the Building Rules, it is to be demolished. Appellant resisted the suit contending that there is no violation of the Building Rules and in such circumstances, respondent is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of PW2, CWs 1 and 2 and DW1, Exts.A1 and A2 and X1 and X2 granted a decree in favour of the respondent finding that the construction of the sun shade in the plaint schedule property is in violation of the Kerala Muncipal Building Rules. Appellant was directed to remove RSA1149/2010 2 portion of the sun shade built in the plaint schedule property against the Building Rules. He was also restrained from making further construction in violation of the provisions of the Kerala Building Rules. Appellant challenged the judgment before District Court, Palakkad in A.S.122 of 2004. Learned Additional District Judge, on reappreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. Second appeal is filed challenging the judgment. 3. The learned senior counsel appearing for the appellants and respondent were heard. The learned senior counsel pointed out that the violation alleged is only 18 cms in excess of the permitted width as per the approved plan and in such circumstances, the decree for mandatory injunction is not sustainable. The learned senior counsel also pointed out that Kerala Panchayat Building Rules, 2011 enables appellant to get constructions made in violation of the Rules, regularised as provided under Rule 134 and in such circumstances, even if the appeal is to be dismissed, an opportunity may be granted to the appellant to get the construction regularised. 4. On going through the judgments of the courts below and RSA1149/2010 3 the admitted facts and evidence on record, I do not find any substantial questions of law involved in the appeal. At the same time, there is force in the submission of the learned senior counsel that Rule 134 of Kerala Panchayat Building Rules 2011 enables appellant to get the construction made in violation of the rules regularised. Therefore that opportunity cannot be denied to the appellant. 5. Appeal is dismissed granting liberty to the appellant to work out his remedies under Rule 134 of Kerala Panchayat Building Rules 2011. To enable the appellant to work out the remedy, it is made clear that the decree shall not be executed for six months. If appellant fails to get the construction regularised within that period, respondent is at liberty to get the decree executed. M.SASIDHARAN NAMBIAR, JUDGE lgk