**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE P.BHAVADASAN**
**TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932**
**RSA.No. 1289 of 2004(C)**
**----------------------------------[AS.NO.14/2001 OF ADDL. DISTRICT & SESSIONS COURT, VADAKARA, OS.NO.132/1999 OF MUNSIFF COURT, VADAKARA, ] ....................**
## **APPELLANT/APPELLANT/DEFENDANT:**
**--------------------------------------------------------**
**KAKKUZHIYIL UMMER, S/O. CHOKRAN, AGED 66 YEARS, VATAKARA AMSOM DESOM, VATAKARA TALUK. *(DIED).**
## ***ADDL. APPELLANTS 2 TO 12 IMPLEADED:**
**2. K. KUNHAMI, W/O. LATE KAKKUZHIYIL UMMER, PADINJARE PUNATHIL HOUSE, P.O. NUT STREET, VATAKARA, PIN – 673 104.**
**3. K. KUNHI MARIYAM, D/O. LATE KAKKUZHIYIL UMMER, NISHANTH VILLA, P.O. VATAKARA, VATAKARA.**
**4. K. ABDUL SALAM, S/O. LATE KAKKUZHIYIL UMMER, PADINJARE PUNATHIL HOUSE, P.O. NUT STREET, VATAKARA, PIN – 673 104.**
**5. ZUHARA .P.P, D/O. LATE KAKKUZHIYIL UMMER, ZAHARATH VILLA, NADAKKUTHAZHA.P.O., MAKKOL PEEDIKA, VATAKARA.**
**6. AYSHA.K., D/O. LATE KAKKUZHIYIL UMMER, SHALIMAR BHAVAN, KEEZHAL.P.O., KEEZHAL MUKK, VATAKARA.**
**7. RAMLA.P.P, D/O. LATE KAKKUZHIYIL UMMER, AYSHA BHAVAN, CHEMMERATHOOR.P.O., VATAKARA.**
**8. USMAN.P.P., S/O. LATE KAKKUZHIYIL UMMER, PADINJARE PUNATHIL HOUSE, P.O. NUT STREET, VATAKARA, PIN – 673 104.**
**9. SHAREEFA.P.P., D/O. LATE KAKKUZHIYIL UMMER, THAZHAMANNIKKOTH KANDY, PATHIYARAKKARA.P.O., PUTHUPPANAM (VIA.,), VATAKARA.**
**10. ARIFA.P.P., D/O. LATE KAKKUZHIYIL UMMER, VAYA VALLAPPIL HOUSE, MALURE.P.O., QUILANDY (VIA.,), KOZHIKODE DISTRICT.**
**R.S.A. NO. 1289/2004-C:**
**11. MOHAMMED.P.P., S/O. LATE KAKKUZHIYIL UMMER, PADINJARE PUNATHIL HOUSE, P.O. NUT STREET, VATAKARA, PIN – 673 104.**
**12. FAISAL.P.P., S/O. LATE KAKKUZHIYIL UMMER, PADINJARE PUNATHIL HOUSE, P.O. NUT STREET, VATAKARA, PIN – 673 104.**
***ADDITIONAL APPELLANTS 2 TO 12 ARE IMPLEADED AS PER ORDER DATED 06/01/2010 IN I.A. NO. 3065/09.**
**BY ADVS. SRI.N.L.KRISHNAMOORTHY, SRI.K.LAKSHMINARAYANAN, SMT.SATHYA SHREEPRIYA, SMTJ.N.NISHA.**
## **RESPONDENT/RESPONDENT/PLAINTIFF:**
**-----------------------------------------------------------**
**KEDANCHOTH MAHAMOOD, S/O. KUNHITHARUVAYI HAJI, AGED 45 YEARS, ERAMALA AMSOM DESOM, VATAKARA TALUK.**
**BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL).**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**J U D G M E N T**
**No representation. The R.S.A. is dismissed for default.**
**18/05/2010.**
**SD/- P.BHAVADASAN, JUDGE.**
**//TRUE COPY//**
**P.S. TO JUDGE.**
**Prv.**
## **P.BHAVADASAN, J.**
------------------------------------RSA No.1289 of 2004 ------------------------------------Dated 8th June 2010
## Judgment
The defendant, who suffered a decree at the hands of the Munsiff's Court, Vadakara and whose appeal
was dismissed by the lower Appellate Court, is the appellant before this Court. The facts and exhibits are hereinafter referred to as they are available before the Trial Court.
## 2. The short facts are as follows :
The suit was one for recovery of possession of plaint B schedule property, over which the plaintiff claimed title. Plaint A schedule property was let out to the defendant in 1946. Complaining that the defendant had trespassed into the plaint B schedule property and reduced into its possession, the suit was laid.
3. The defendant came up with several contentions. It was contended that the plaint B schedule property was the subject matter of a lease, covered by
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Ext.A1 document. Another contention was that plaint B schedule was an appurtenant portion and so, it is included in the lease. Yet another contention was that even assuming the plaintiff had any rights, they have been lost by adverse possession and limitation.
4. On the basis of the pleadings, the Trial Court raised necessary issues. The evidence consists of Exts.A1 and A2 from the side of the plaintiff. No witness was examined from the side of the plaintiff. The defendant examined DW1. No documents were marked from the side of the defendant. Exts.C1 to C4 Commissioner's reports and plans and Ext.X1 series documents were also marked.
5. On an evaluation of the evidence, the Trial Court came to the conclusion that the plaint B schedule property neither forms the subject matter of the lease nor does it form an appurtenant portion of the plaint A schedule property. Therefore, a decree was granted in favour of the plaintiff. In appeal, even though the defendant raised several contentions, the lower Appellate Court concurred
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## with the Trial Court. Hence this Second Appeal.
## 6. The following questions of law are formulated
## in this appeal :
_“1. When admittedly the portion claimed for recovery is a narrow strip of land used as a backyard of the building leased out, is there not a presumption that the said portion is a necessary adjunct of the building and becomes the land appurtenant thereto ?_
_2. When the Building Lease and Rent Control Act is applicable to the area and when the defendant is admittedly a lessee of the building, is the suit maintainable for recovery of any portion which comes within the definition of “building” under the Act ?_
_3. When the Commissioner's report and plan do not indicate the measurement, were the courts right in coming to the conclusion that B schedule portion does not form part of the lease ?_
_4. When the plaintiff does not give any evidence in a suit on trespass, does not the evidence of the defendant prevail regarding this nature of the possession ?_
_5. Alternatively, when the appellant is in_
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_possession of this portion even from the date of the lease, is not the claim barred by adverse possession and limitation ?”_
7. The learned counsel for the appellant pointed out that the courts below have misdirected themselves both on facts and on law. It is contended that even assuming that strictly speaking B schedule property was not covered by Ext.A1 rent deed, by virtue of the definition of “building” in the Buildings (Lease and Rent Control) Act (Act 2 of 1965) and as it is appurtenant to the building on lease, it forms part of the building which was let out to the tenant. It is also pointed out that the courts below have not properly considered Ext.X1 series, which are the records maintained by the Municipality and which would show that he was in possession of plaint B schedule property. In support of his contention, the learned counsel placed reliance on the decision in **Sushil Kumar Mehta v. Gobind Ram Bohra** (1990) 1 SCC 193). He contended that the suit was not maintainable and it may be dismissed.
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8. The learned counsel for the respondent pointed out that the appellant had no consistent case. Initially, his case was that Ext.A1 deed takes in both Plaint A and B schedule properties. At a later stage, he came forward with a plea that plaint B schedule appurtenant portion and so, it is a part of the building leased out to him. Still later, he claims right by adverse possession and limitation. None of these contentions found favour with the courts below and on an appreciation of the evidence, the courts came to the conclusion that plaint B schedule is an independent portion. Being a question of fact, the learned counsel pointed out that there are no grounds to interfere with the Judgment and decree of the lower Appellate Court.
9. The question that arises for consideration is whether the plaint B schedule property forms part of the building let out to the defendant. Ext.A1 is the document, by which the defendant came into possession of the property. The recital in Ext.A1 clearly shows that what is
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stated is only plaint A schedule property. The description in Ext.A1 is similar to the report and sketch prepared by the Commissioner. It is true that the Commissioner has stated that plaint B schedule portion looks more like an enclosed room rather than an open land. One must remember that the allegation of the plaintiff is that the defendant has reduced into its possession and has made structures therein. The lower Appellate Court has also considered the evidence on record and came to the conclusion that plaint B schedule property could not have been a portion of the room leased out to the defendant.
10. As far as Ext.X1 is concerned, it is taken that it must not help the defendant. That is the proceedings initiated by the Municipality for making unauthorised construction. The plaintiff admits that the defendant had taken illegal possession of the property and had made structures therein. Viewed from that context, no rights can be claimed on the basis of Ext.X1 documents.
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11. The reliance placed on the decision in **Sushil Kumar Mehta v. Gobind Ram Bohra (supra)** is of no use. The facts in the said case are entirely different. That is a case where the landlord had initially taken an open land from the Municipality on lease, constructed a shop building there and then, let it out to the defendant. It was in that context that it was held that the land forms appurtenant to the building leased. That principle can have no application to the present case. In the case on hand, Ext.A1 is explicit regarding the room which was given on rent. It has clearly excluded plaint B schedule property. It cannot be said that it is appurtenant to the building leased out to the tenant. It would appear from the records that in fact, plaint B schedule was an open land behind the room occupied by the defendant. Of course, going by the Commissioner's report, it can be seen that the defendant had been using that area. That is far from saying that he is entitled to use the same. The definite stand of the plaintiff was that that portion had not been given on rent to the
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tenant who had unauthorisedly reduced that portion into his possession. The mere fact that there were signs of that portion having been used by the tenant, that does not enable the defendant to contend that that portion is also included in the lease. Both the courts have independently considered the evidence on record and for cogent and convincing reasons, have come to the conclusion that plaint B schedule property is not a part of the leasehold property nor is it an appurtenant portion of the room let out to the tenant. The finding is, essentially, one of fact. There is nothing to show that the findings of the courts below are perverse or unjustified, warranting interference by this Court. Even if a different view might be possible, that is not a ground to interfere with the Judgment and decree. The Second Appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs.
The Registry shall return the records forthwith.
**P.BHAVADASAN, JUDGE**
sta
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