IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 759 of 2007()
1. CHATHOTH RYRU NAIR, S/O.T.R.NAIR,
... Petitioner
2. MUNDERI NARAYANIKUTTY AMMA,
Vs
1. V.MUKUNDAN, S/O.LATE N.V.NARAYANI,
... Respondent
2. BALAN, S/O.MADHAVI, RESIDING AT
3. RAJAN, S/O.MADHAVI, RESIDING AT
4. PRADEESAN, S/O.MADHAVI, RESIDING AT
5. SATHI, D/O.MADHAVI, RESIDING AT
6. RAVI, S/O.MADHAVI, RESIDING AT
7. PRAKASHAN, S/O.MADHAVI,
8. YESODHA, D/O.LATE NARAYANI,
9. SREEDHARAN, S/O.LATE NARAYANI,
10. BHASKARAN, S/O.LATE NARAYANI,
11. SANTHA, D/O.LATE NARAYANI,
For Petitioner :SRI.MILLU DANDAPANI
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/02/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 759 OF 2007
===========================
Dated this the 12th day of February, 2008
JUDGMENT
Plaintiffs in O.S.353/1996 on the file of
Munsiff Court, Thalassery are the appellants.
Defendants are the respondents. Appellants
instituted the suit for permanent prohibitory
injunction restraining respondents from
trespassing into the plaint schedule property. It
was contended that plaint A schedule property and
the adjacent plot originally belonged to Karayi
Achuthan and in 1949 he assigned plaint A schedule
property in favour of first appellant and his
brother Krishnan Nair for the purpose of
constructing a shop room and plaint A schedule
property was in his absolute possession and
Krishnan Nair gifted his right over plaint A
schedule property in favour of first appellant
under a gift deed dated 12.8.1960 and later first
appellant transferred all his rights over plaint A
R.S.A.759/2007 2
schedule property measuring 3 cents with the shop
building in favour of his wife second appellant on
11.8.1989 and plaint A schedule property is thus in
the possession of second appellant. It was
contended that plaint B schedule property is in
the possession of first appellant as per Ext.A4
lease deed dated 5.11.1956 executed between himself
and one Vadavathi Kunhiraman and as it was a
commercial lease for construction of shop building
and construction was made first appellant is
entitled to fixity of tenure. Respondents 1 and 2
are the legal heirs of Karayi Achuthan and
respondents 3 to 6 are the legal representatives of
Kunhiraman. It was contended that respondents have
no right to plaint B schedule property and they
attempted to trespass into that property and they
are to be restrained by a permanent prohibitory
injunction. Respondents 1 and 2 in their written
statement admitted that plaint schedule property
originally belonged to Karayi Achuthan and on his
death, it devolved on his children first
R.S.A.759/2007 3
respondent and her brothers Kunhiraman and
Damodaran and sister Mathu. Second respondent is
the son of first respondent and respondents 3 to 6
are the widow and children of Kunhiraman. It was
contended that the co-ownership properties were
partitioned in 1964 and different portions of the
properties were allotted to different sharers and
the property allotted to first respondent is in the
south which comes up to the road in the west where
a building was reconstructed which was allotted to
first appellant and there was no tenant landlord
relationship between appellants and respondents
and no rent was paid by appellants and even if a
lease deed was executed by first appellant, he did
not construct any building and is not entitled to
the protection of Kerala Land Reforms Act. It was
contended that respondents are not aware of the
lease deed allegedly executed in respect of plaint
B schedule property and in any case appellants are
not entitled to the decree sought for. Respondents
3 to 7 the legal heirs of Kunhiraman filed a
R.S.A.759/2007 4
written statement admitting that Karayi Achuthan
leased out some plots on the western part touching
Thalassery -Mambaram public road to third parties
for constructing shop building. Plaint A schedule
is such a plot permitted by Achuthan to construct
shop building alone and plaint B schedule property
was never in the possession of first appellant or
Kunhiraman and even if he had given any lease it is
not legally valid as he has no right to create such
a lease without the consent of other co-owners.
After the death of Kunhiraman the entire properties
of Karayi Achuthan were partitioned as per
partition deed dated 7.4.1964 and respondents are
entitled to plaint B schedule property and it is in
their possession and appellants are not entitled to
the decree sought for.
2. Learned Munsiff on the evidence of Pws.1
and 2, and Exts.A1 to A9 and B1 to B4, C1 to C3
dismissed the suit holding that appellants did not
establish any right or possession to the plaint B
schedule property. It was found that though
R.S.A.759/2007 5
appellants are claiming right under Ext.A4 lease
deed executed in favour of Kunhiraman, one of the
co-owner, there is no evidence to prove that first
appellant obtained possession of the property
thereunder or constructed a building or was doing
any business as alleged and he is not entitled to
protection under Section 106 of Kerala Land
Reforms Act. Finding that appellants failed to
establish their possession of the plaint B schedule
property and possession over plaint A schedule is
not in dispute, suit was dismissed. Appellants
challenged the judgment before Sub Court,
Thalassery in A.S.62/2003. Learned Sub Judge on
reappreciation of evidence confirmed the findings
of learned Munsiff and dismissed the appeal. It is
challenged in the second appeal.
3. Learned senior counsel appearing for
appellants was heard.
4. The argument of learned senior counsel is
that courts below did not properly appreciate the
scope of the suit or the evidence on record. It
R.S.A.759/2007 6
was argued that suit is only one for injunction,
but more importance was given to the question
whether the lease is protected as it is a
commercial lease as provided under section 106 of
the Kerala Land Reforms Act. It was argued that
when evidence establish that under Ext.A4, plaint
B schedule property was obtained by first appellant
from Kunhiraman in 1956 and a building was
constructed therein as found by the Commissioner
at the time of inspection, courts below should
have upheld the case of appellants that it is a
commercial lease and acting on the lease first
appellant constructed a building and is entitled
to the protection of 106 of Kerala Land Reforms
Act. It was argued that in any event as appellants
established their possession of plaint B schedule
property, respondents are not entitled to trespass
into the property and therefore a decree for
injunction should have been granted.
5. On hearing the learned counsel, I do not
find that any substantial question of law is
R.S.A.759/2007 7
involved in the appeal.
6. Though suit is one for injunction appellants
themselves specifically pleaded that plaint B
schedule property was obtained under Ext.A4 lease
deed and it is a commercial lease enabling first
appellant to construct a building for commercial
purpose and acting on that lease deed, first
appellant constructed a building and he is
protected by the provisions of section 106 of
Kerala Land Reforms Act. Though fixity of tenure
was claimed, Section 106 of Kerala Land Reforms
Act does not provide a fixity of tenure to a
tenant. Whatever it be, trial court and first
appellate court on appreciating the evidence found
that apart from Ext.A4, there is no evidence to
prove that land was obtained by first appellant on
lease and acting on the lease a building was
constructed for commercial purpose. Though it was
contended by appellants that after construction of
the building business was being carried out,
appellants did not produce even one receipt for
R.S.A.759/2007 8
payment of pattom as provided under Ext.A4 or
receipt for payment of building tax or professional
tax or receipt to prove that he was doing business
in the building. Courts below on proper
appreciation of the evidence found that there is no
evidence to prove that first appellant constructed
any building in the plaint B schedule property.
Courts below on the evidence rightly found that
appellants are not entitled to the protection
provided under section 106 of Kerala Land Reforms
Act.
7. Though learned senior counsel argued that a
decree for injunction should have been granted as
the appellants are in possession of plaint B
schedule property, on appreciating the evidence,
both the trial court and first appellate court
found that appellants did not establish their
possession of plaint B schedule property. It is a
finding of fact. The finding of the first
appellate court is final. It cannot be said that
appreciation of evidence by the courts below was
R.S.A.759/2007 9
perverse warranting interference by this court
court in exercise of the powers under section 100
of Code of Civil Procedure. In such circumstance,
appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006