Kerala High Court
*1. Pathiyottil Narayanan Vydiar vs Devadasan
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 18TH DAY OF JULY2017/27TH ASHADHA, 1939
SA.No. 497 of 2001
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AGAINST THE JUDGMENTAND DECREE DATED 6.7.2000 IN AS 115/1998 of III
ADDITIONAL SUB COURT, KOZHIKODE.
AGAINST THE JUDGMENTAND DECREE DATED 17.01.1998 IN OS 374/1992 of
ADDITIONAL MUNSIFF COURT -I, KOZHIKODE-I.
APPELLANTS/APPELLANTS/PLAINTIFFS:
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*1. PATHIYOTTIL NARAYANAN VYDIAR,
AGED 76 YEARS,
S/O CHANDU VYDIAR,
THIRUTHIYAD,
KALATHINKUNNU AMSOM, DESOM,
KOZHIKODE TALUK. (RECORDED).
* IT IS RECORDED THAT THE 1ST APPELLANT DIED AND THE RIGHT TO SUE
SURVIVED ON APPELLANTS 2 TO 9 AS PER ORDER DATED 26.03.2002
IN CMP NO.647/2002.
2. CHILDREN, P.PREMASUDHA,
AGED 39 YEARS, THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
3. P.PRADEEP KUMAR,
AGED 37 YEARS, THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
4. P.USHA, AGED 35 YEARS, THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
5. P.MANOJ KUMAR, AGED 33 YEARS, THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
6. P.ANISHKUMAR, AGED 31 YEARS,
THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
7. P.VARSHA, AGED 29 YEARS,
THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
8. P.VARNA, AGED 27 YEARS, THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
9. P.RANJITH KUMAR, AGED 26 YEARS,
THIRUTHIYAD,
KALATHINKUNNU AMSOM,
DESOM, KOZHIKODE TALUK.
BYADVS.SRI.JACOB ABRAHAM
SMT.KOCHUMOL KODUVATH
RESPONDENT/RESPONDENT/DEFENDANT:
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DEVADASAN, AGED 60 YEARS,
S/O APPU, PULPARAMBIL HOUSE,
KOTTULI AMSOM, DESOM, KOZHIKODE TALUK.
BYADV. SRI.K.P.DANDAPANI (SR.)
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2017, THE
COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
rmm
K. RAMAKRISHNAN, J.
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S.A.No.497 of 2001
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Dated this the 18th day of July, 2017.
J U D G M E N T
The plaintiffs in OS.No.374/1992 on the file of the Munsiff Court, Kozhikode -I are the appellants herein. The suit was one filed by the original plaintiff for mandatory injunction directing the defendant to remove the unauthorised construction made in the B schedule property. It is alleged in the plaint that plaint A schedule property belongs to the 1st plaintiff and it was entrusted by her husband to the defendant on 02.01.1956 as per Ext.A1 kychit. The defendant is entitled to possess the building only as a building tenant. While so, he trespassed into a portion of the plaintiffs' property and constructed B schedule structures in that portion without the knowledge and consent of the plaintiffs. He had no right or authority to alter the present construction of the building as well. When it was brought to the knowledge of the plaintiffs regarding the unauthorized construction, she sent Ext.A2 notice on 29.1.1983 and also on 18.7.1987, to which defendant sent Ext.A6 reply notice with false allegations. So S.A.No.497 of 2001 2 she filed the suit for mandatory injunction directing the defendant to demolish the B schedule construction and surrender portion of that land covered by the structure.
2. The defendant entered appearance and filed written statement admitting the tenancy created in respect of plaint A schedule building as per Ext.A1 kychit. According to him, the description of the building shown in the original kychit is not correct. On the northern and eastern side of the building there is a lane having 6 feet width, but the boundaries are shown as the remaining portion of the property. He had not encroached into any portion and constructed any building and he had only made improvements to the existing building with the consent of the landlady. The plaintiffs sent notice during January 1974, alleging some alterations said to have been done by the defendant. Thereafter she filed a petition before the Rent Control Court seeking eviction under Section 11 (2) (b), 11(4)
(i) and 11(4) (iii) of Act 2 of 1965 and that petition after evidence was dismissed, confirmed in the appeal by the Rent Control Appellate Authority and in the revision by this Court. The suit is not maintainable as there is no prayer for recovery of possession. According to the defendant, the suit was filed S.A.No.497 of 2001 3 only to harass him, he had not made any structures on the northern and eastern side of the existing building. So he prayed for dismissal of the suit.
3. On the basis of the pleadings, the following issues were framed by the court below:
"1. Whether the allegation that the plaintiff has got right over the property as per document No.8084/66 is true?
2. Whether the defendant has committed any waste in respect of the building ?
Addl.Issue No.3 Whether the plaintiffs are entitled to get the mandatory injunction as prayed ?
Reliefs and costs".
4. During the pendency of the suit, original plaintiff died and her legal heirs were impleaded as additional plaintiffs 2 to 10 as per order in I.A.No.2002/95 and consequential amendment was made as per order in I.A. No.2003/95.
5. In order to prove the case of the plaintiffs, PW1 was examined and Exts.A1 to A7 and C1 to C4 were marked. No oral evidence was adduced on the side of the defendant and Exts.B1 and B2 were marked.
6. During the pendency of the suit, plaintiffs filed I.A.No.3/98 for amending the plaint to incorporate a prayer for recovery of possession of plaint 'B' schedule property. That application was dismissed as per order dated 7.1.98. After S.A.No.497 of 2001 4 considering the evidence on record, the trial court found that even according to the plaintiffs, the alleged constructions were made in the year 1983, and the present suit itself was filed after disposal of the Rent Control Revision Petition filed by the land lady and thereby the court came to the conclusion that they have acquiescent to the act of the defendant and as such they are not entitled to get the relief of Mandatory injunction and also found that the plaintiffs failed to prove the trespass as alleged and dismissed the suit. She filed A.S.No.221/98 before the District Court, Kozhikode, which was made over to Sub Court, Kozhikoe where it was renumbered as A.S.No.115/98 and thereafter it was made over to 3rd additional Sub Court for disposal. The lower appellate court also concurred with the findings of the trial court and dismissed the appeal. Aggrieved by the same, the present second appeal has been preferred.
7. While admitting the second appeal, the following questions of law raised for consideration by this Court:
"1. Whether the dismissal of I.A.3 of 1998 filed for amending the plaint to incorporate a prayer for recovery of possession of plaint 'B' schedule property on the strength of plaintiffs title at the threshold on the ground that the reliefs is barred by law of limitation and adverse possession is justified when the defendant is S.A.No.497 of 2001 5 only a tenant of the plaintiffs and also before amendment of pleadings by the parties and without any evidence regarding adverse possession is let in by the parties ?
2. Whether a tenant can make constructions in the demised property without the permission of the landlord when he is only a tenant under the Kerala Buildings (lease and rent control) Act ?".
8. Heard Sri.Jacob Abraham, counsel appearing for the appellants and Sri.Roy Thomas, counsel representing Sri.K.P.Dandapani Senior counsel appearing for the respondent.
9. Counsel for the appellants submitted that the lower appellate court was not justified in dismissing the application for amendment of the plaint with an observation as it was filed out of time and beyond the period of limitation. Further, he had also argued that if or any reason this court is not inclined to set aside the decree and judgment passed by the court below his right for future action may be reserved.
10. On the other hand, counsel appearing for the respondent submitted that courts below had properly appreciated the facts and rightly dismissed the amendment application and also suit, which is rightly confirmed by the lower appellate court.
S.A.No.497 of 2001 6
11. During the pendency of the appeal, 1st appellant died and appellants 2 to 9 were recorded as her legal representatives as per order in CMP No.647/2002.
12. It is an admitted fact that plaint A schedule property belonged to the original plaintiff and it was let to the defendant as per Ext.A1 kychit. The case of the original plaintiff was that the defendant encroached into remaining portion of her property and unauthorizedly constructed 'B' schedule structure there. So she filed the suit for mandatory injunction directing the defendant to remove the unauthorized structure made and surrender possession of that portion. Admittedly, the unauthorized construction made in the year 1983. Further it was also brought out in evidence that the plaintiffs filed Rent Control Proceedings against the defendant under the provisions of the Kerala Buildings (lease and rent control) Act on the ground of causing damage to the building and sub lease and acquisition of building, which is sufficient for his purpose but that was dismissed and it was taken upto this court in revision and revision was also dismissed. It was thereafter that the present suit was filed.
13. It is seen from the evidence itself that plaintiffs S.A.No.497 of 2001 7 were aware of the illegal construction said to have been made in the year 1983 itself. But the suit was filed only in the year 1992. Since mandatory injunction being a discretionary relief, the court below had come to the conclusion that there was acquiescence on the part of the plaintiffs in allowing the defendant to make the construction and also on the basis of evidence came to the conclusion that there was no evidence to show that there was any trespass committed by the defendant and constructed the building and rejected the prayer for mandatory injunction and also damages and dismissed the suit. This was concurred by the appellate court as well in the appeal filed by the plaintiffs. So as regards the decree for mandatory injunction is concerned, this court do not find any reason to interfere with the concurrent finding of the court below arrived at on the basis of the facts as there is no substantial question of law arises in this regard.
14. As regards the dismissal of IA No.3/98, the amendment application is concerned, the court below came to the conclusion that the suit was filed in the year 1992 and when the suit was included in the list and at the fag end of the trial only the present application for amendment was filed in S.A.No.497 of 2001 8 the year 1998 based on the trespass alleged to have occurred in the year 1983. This court is not going to the question as to whether the claim is barred by the limitation or not as observed by the court below in the impugned order dismissing the application for amendment, as at that stage that question need not be gone into by that court. The counsel appearing for the respondent relied on the decision of the Apex Court in Revajeetu Builders and Developers v. Narayana Swami and son and Ors. [2009 (10) SCC 84] for the proposition that though the court has got a wider power to allow amendment application at any stage of proceedings, it must be cautious while exercising the discretion if it is likely to cause prejudice to the respondent and the proposed amendment constitutionally and fundamentally changes the nature and character of the case. In this case the suit was originally filed for mandatory injunction, later it was sought to be amended one for recovery of possession on the strength of title. The nature of evidence to be adduced is totally different. Further the application for amendment was filed at the fag end of the trial after evidence was adduced. So under such circumstances, the trial court was perfectly justified in S.A.No.497 of 2001 9 dismissing the application for amendment which was filed at the belated stage, that too after evidence was taken. So this court do not find any reason to interfere with the impugned order passed by the court below in the amendment application as well. So the appeal lacks merit and the same is hereby dismissed.
In the result, appeal fails, the same is hereby dismissed. But the right if any of the plaintiffs, to file a suit for recovery of possession or other remedies available under law to get recovery of the property is left open and the appellants are at liberty to move for appropriate relief in accordance with law, if they are so entitled. Considering the circumstances of the case, parties are directed to bear the respective cost in the second appeal. All interim applications, if any, pending are closed. Registry is directed to communicate the judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
rmm/19/7/2017 // True copy // P.A. To Judge