IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 104 of 2009(E) ---------------------- AS.221/2004 of ADDL.DISTRICT COURT, KOZHIKODE OS.576/1998 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANTS/PLAINTIFFS: ----------------------------- 1. ANNURKAVIL SARASWATHI, W/O.RAJAN, AGED 62, KOLLARACKAL, P.O.CHELANNUR-KOZHIKODE. 2. ANNURKAVIL GEETHA, W/O.RAVINDRAN KOLLARACKAL, P.O.CHELANNUR-KOZHIKODE. 3. ANNURKAVIL SEENA, D/O.RAJAN, KOLLARACKAL, P.O.CHELANNUR- KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENTS: RESPONDENTS/DEFENDANTS: --------------------------------------------------- 1. STATE OF KERALA 2. THE BLOCK DEVELOPMENT OFFICER, CHELANNUR BLOCK OFFICE, P.O.CHELANNUR- KOZHIKODE. GOVERNMENT PLEADER FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------ R.S.A.No.104 of 2009 ------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT The plaintiffs in O.S.No.576 of 1998 are the appellants. The Second Appeal is directed against the decree and judgment in A.S.No.221 of 2004 on the file of the District Court, Kozhikode. The suit filed for declaration and prohibitory and mandatory injunction was dismissed by the trial court and confirmed in appeal. Hence the second appeal. 2. Plaint A and B schedule properties admittedly belonging to the plaintiff and defendants respectively. The plaint B schedule property is situated in the eastern side of the plaint A schedule property and is lying 8 feet lower in level than plaint A schedule property. It is the plaintiffs' case that the defendants have constructed a multi-storied building in plaint B schedule property illegally, unauthorizedly, without leaving the minimum space from the road as required under the Building Rules and therefore it is in violation of the Building Rules. The plaintiffs' further grievance is that due to the construction of the building in plaint B schedule property, the lateral support to plaint A schedule property is lost and therefore if the R.S.A.No.104 of 2009 2 construction is proceed with the plaintiff will be put to hardship and it will cause obstruction to the free flow of light and air to the residential house of the plaintiffs. 3. The suit was resisted by the defendant and contended that construction in the plaint B schedule property has been carried out in conformity with the Building Rules and that they have approved plan and license from the local body and that the construction is in accordance with Rules. 4. The court below appreciated the oral and documentary evidence adduced by the parties. Husband of one of the plaintiffs was examined as PW.1. The plaintiffs produced Exts.A1 to A6 and the defendants produced Ext.B1 to B3. No oral evidence was adduced on the side of the defendant. The trial court after appreciating the evidence on record held that there is no evidence to show that the building was constructed in plaint B schedule property in violation of the Building Rules. After perusing the records the court also found that the defendant constructed the building in accordance with the plan and license and there is nothing to show that the construction of the R.S.A.No.104 of 2009 3 building in plaint B schedule property obstructed free flow of light and air to the residential house situated in plaint A schedule property. The trial court further held that the plaintiff fail to establish that they have acquired easement by prescription over B schedule property belonging to the Government. 5. Ext.B1 to B3 would show that defendants have obtained necessary plan and permission for the building. Ext.C1 and C1(a) would show that the distance between the buildings in plaint A schedule property and plaint B schedule property is 7.7 metres. Therefore it is clear that the defendants had constructed the buildings after leaving the space required to be left. Moreover the plaintiff failed to implead the Chelannur Grama Panchayat which is a necessary party to the suit, especially when the plaintiff alleged that the construction is in violation of the Building Rules, Plan and license. The refusal of reliefs to the plaintiffs as prayed for was re agitated before the appellate court. The appellate court also agreed with the trial court in material particulars and dismissed the appeal finding that there is absolutely no ground to interfere with the finding of the lower court. According to R.S.A.No.104 of 2009 4 the appellate court the lower court has correctly evaluated the evidence and dismissed the suit. The dismissal of suit is challenged before this court. After hearing the learned counsel for the appellant I find that findings entered by the trial court confirmed in appeal is based on evidence and that the view taken by both courts requires no interference. The view taken by both courts is the only view possible in the given circumstances. Even on facts I perfectly agree with the findings passed by the courts below. Besides the findings are solely based on facts. No question of law much less any substantial questions of law arises for consideration in this second appeal. I do not find any ground to invoke the jurisdiction under Section 100 of the C.P.C. Therefore this appeal fails and accordingly it is dismissed in limine. HARUN-UL-RASHID, JUDGE skj.