IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1129 of 2009()
1. JOSE, AGED 54 YEARS,
... Petitioner
2. SALEENA, AGED 50 YEARS,W/O.THEKKEKARA
Vs
1. KURIAPPAN, AGED 73 YEARS,
... Respondent
2. CHIRIYAKKU, S/O.THEKKEKARA VAREED,
3. WILLIAMS, AGED 48 YEARS,
4. MOHANAN, AGED 45 YEARS, S/O.CHIRIYAKKU,
5. THOMAS, AGED 42 YEARS, S/O.CHIRIYAKKU,
6. EDISON, AGED 39 YEARS, S/O.CHIRIYAKKU,
7. JISON, AGED 37 YEARS, S/O.CHIRIYAKKU,
8. DAVIS, S/O.LATE KURIAPPAN,
9. VARGHESE, S/O.LATE KURIAPPAN,
10. AMMU, D/O.LATE KURIAPPAN,
11. THOMAS, S/O.LATE KURIAPPAN,
For Petitioner :SRI.THIYYANNOOR RAMAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/11/2009
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.1129 of 2009
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Dated this the 19th day of November, 2009.
JUDGMENT
The Second Appeal arises from judgment and decree of learned District
Judge, Thrissur in A.S.No.119 of 2004 confirming dismissal of O.S.No.915 of
1995 by learned II Additional Sub Judge, Thrissur. That was a suit filed by the
appellants on 24.7.1995 seeking injunction against the respondents trespassing
into the schedule room. Appellants claimed that under a rental arrangement
with respondent No.1, they have been in possession of the said room and
continued to be so on the date of suit. They claimed that the shoproom was
used for their hardware business (conducted elsewhere) and when they
stopped the business, they used the said shoproom to keep hardware items
valued around Rs.10,000/-. Alleging trespass in to the said shoproom by the
respondents, appellants filed the suit for decree for prohibitory injunction.
Respondents contended that though there was a tenancy in favour of appellants
in respect of the shoproom it was surrendered in favour of respondent No.1 in
February, 1995 followed by respondent No.1 entrusting the said room to
respondent No.2 as per Ext.B2, rent deed dated 1.7.1995. In the meantime
there was an attempt on the part of appellants to amend the plaint alleging that
after institution of the suit respondents trespassed into the schedule room and
dispossessed him. Learned Sub Judge was not impressed by that application
and dismissed the same. Learned Sub Judge after consideration of the
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evidence held that appellant was not able to prove his case either by
documentary or oral evidence and non-suited him. Learned District Judge
confirmed judgment and decree of the trial court. Hence this Second Appeal.
Substantial questions of law urged before me is whether dismissal of
I.A.No.4903 of 1996 (for amendment of plaint) by the trial court on the ground
that amendment if allowed would change the character and nature of the suit is
legal and proper and whether finding of the courts below that appellants had no
possession of the suit property is not legally sustainable. Learned counsel for
appellants stressing the above point contended that courts below ought to have
considered the documents and that even the report of the advocate
commissioner revealed that as per the records respondent No.2 started his
business in the scheduled room from 17.8.1995 onwards.
2. That there was tenancy in favour of appellants in respect of the
shoproom is not disputed by the respondents. Even according to the appellants
they used the said shoproom for keeping hardware items and when they stopped
the business the hardware items were kept in the room. It is not disputed that
business was stopped much prior to the institution of the suit. Exts.A1 and A2
are produced by the appellants to show that they are in possession of the
shoproom on the date of suit. Respondent No.1, to evict another tenant from
the adjoining room filed R.C.P.No.14 of 1991 in the court of learned Rent
Controller, Thrissur and gave evidence as PW1 in that case. Ext.A1 is the
certified copy of deposition of PW1 in that case given on 5.1.1995. In Ext.A1,
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respondent No.1 stated that he has no other room in his possession in that
building (as on 5.1.1995). Ext.A2 is the certified copy of memorandum of
appeal preferred against dismissal of R.C.P.No.14 of 1991 where also
respondent No.1 contended that he has no other room in his possession in the
building where the shoproom is situated. Contention advanced by learned
counsel is that Exts.A1 and A2 would reveal that respondent No.1 was not
having possession of the shoproom on the date of the present suit as
contended by him.
3. Courts below found that Exts.A1 and A2 cannot help the
appellants. The reason is that according to the respondents surrender of
tenancy of the shoproom was in February, 1995 while Ext.A1, deposition was
given by respondent No.1 prior to that on 5.1.1995. On that day he was
justified in deposing that he had no other room in the same building in his
possession. So far as Ext.A2, memorandum of appeal in R.C.A.No.29 of 1995 is
concerned, that was preferred on 27.5.1995 much after the alleged surrender of
the shoproom in favour of respondent No.1 in February, 1995. That was
explained by DW1, respondent No.1 stating that his counsel at the time of
preferring the appeal memorandum just carried over what was stated in
R.C.P.No.14 of 1991 filed much before the alleged surrender of the room by the
appellants in his favour in February, 1995. That explanation was accepted by
the courts below on the facts and evidence.
4. Now I shall come to the report of advocate commissioner.
Commissioner inspected the scheduled room on 9.12.1995 and stated that as
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per the records respondent No.2 started business in the said room from
17.8.1995 onwards ( Ext.B1, rent deed executed by respondent No.2 in favour
of respondent No.1 is dated 1.7.1995). I do not find anything strange in that the
rent deed is dated 1.7.1995 and respondent No.2 started business only on
17.8.1995. It is relevant to note that appellants who claimed possession of the
shoproom on the date of institution of suit did not then take out a commission.
Apart from that, appellants did not prefer any complaint before the police
regarding the alleged trespass into the scheduled shoproom and loss of
hardware items kept therein. It is also pertinent to note that appellants did not
produce any evidence to show that hardware items worth about Rs.10,000/- had
been kept in the shoproom even on the date of institution of suit. They could
have proved that taking out a commission. Courts below observed that if the
hardware items kept in the shoproom were removed by the respondents, in the
normal course appellants would have preferred a complaint against them before
the police. It is in these circumstances courts below refused to find in favour of
appellants. That finding rest on proper appreciation of the evidence and cannot
said to be perverse. Hence no substantial question of law is involved.
5. So far as dismissal of I.A.No.4903 of 1996 for amendment of the
plaint to recover possession of the property is concerned, evidence did not
reveal that appellants had possession of the shoproom on the date of
institution of suit. It is not the case of appellants that they lost possession of
the shoproom prior to the institution of suit. In such situation, dismissal of
I.A.No.4903 of 1996 cannot be said to be illegal. On going through the
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judgments under challenge and hearing learned counsel for appellants I do not
find any substantial question of law involved in this Second Appeal requiring its
admission and issue of notice to the respondents.
The Second Appeal is dismissed in limine.
THOMAS P.JOSEPH,
Judge.
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