M. Narasimha Shenai v. Narmada alias Laxmi Sai and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 SA.No. 919 of 1995(A) --------------------- A.S. NO. 19 OF 1992 OF SUB COURT, KASARAGOD O.S. NO.349 OF 1986 OF PRINCIPAL MUNSIFF COURT, KASARAGOD. APPELLANT(S)/APPELLANT/PLAINTIFF: -------------- M. NARASIMHA SHENAI, S/O. LATE M. RAMACHANDRA SHANBHOGUE, RESIDING AT HOSBETTU VILLAGE, P.O. MANJESHWAR, KASARAGFOD TALUK, KASARAGOD DISTRICT. (DIED) ## ADDITIONAL SECOND APPELLANT: NALINI SHENOY, W/O. M. NARASIMHA SHENOY, AGED 69, RESIDING AT MANJSHWAR, LOWER CAR STREET, HOSBETTU VILLAGES, KASARAGOD. (ADDITIONAL SECOND APPELLANT IMPLEADED AS THE SOLE LEGAL HIR OF DECEASED SOLE APPELLANT AS PER ORDER DATED 19.8.2008 IN I.A. NO.1699 OF 2008. BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.R.VIJAYAGOPAL SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S/RESPONDENTS/DEFENDANTS): --------------- 1.MRS. NARMADA ALIAS LAXMI SAI, WIDOW OF LATE DEVASA PRAHU, RESIDING AT RAMACHANDRA SHANBHOGUE'S HALEMANE COMPOUND, LOWER CAR STREET, MANJESHWAR, HOSBETTU VILLAGE, KASARAGOD TALUK, P.O. MANJESHWAR, KASARAGOD DISTRICT. (DIED LRS. RECORDED) 2. VITTALA D. PRABHU, S/O. -DO- IN -DO-, EMPLOYED IN S.A.T. HIGH SCHOOL, MANJESHWAR. - 3.VAIKUNTA D. PRABHU, S/O.-DO-, RESIDING AT RAMACHANDRA SHANBHOGUE'S HALEMANE COMPOUND, LOWER CAR STREET, MANJESHWAR, HOSBETTU VILLAGE, KASARAGOD TALUK, P.O. MANJESHWAR, KASARAGOD DISTRICT. 4.MRS. KASTHURI ALIAS SHANTHA BALIGA, W/O.LATE KAMALAKSHA BALIGA, RESIDING AT SHEDIGURI IN ASHOK NAGAR, MANGALORE, SOUTH KANARA DISTRICT, KARNATAKA STATE. - 5.MRS. SARASWATHI PRABHU, W/O. LATE PADNABHA PRABHU, C/O. HARIDASA PRABHU, KOMALS RESTAURANT, RAILWAY STATION ROAD, CANNANORE, CANNANORE DISTRICT. - 6.MRS. GEETHA SHENAI, W/O. JAGADISHA SHENOY, RESIDING OPPOSITE SANGAHA NIKETAN, MANNAGUDDE, MANGALORE CITY SOUTH KANARA DISTRICT, KARNATAKA DISTRICT. - 7.JAYANTHI PRABHU, SON OF DEVADASA PRABHU, RESIDING AT RAMACHANDRA SHANBHOGUE'S HALEMANE COMPOUND, LOWER CAR STREET, MANJESHWAR, HOSBETTU VILLAGE, KASARAGOD TALUK, P.O. MANJESHWAR, KASARAGOD DISTRICT. - 8.SHANTHA PRABHU, D/O. -DO- IN -DO- -DO- RESPONDENTS 2 T0 8 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 21.2.97 ON MEMO 2077/96 ADVS. SRI.M.C.SEN (SR.)-R1 TO R8 SMT.SHAHNA KARTHIKEYAN SRI.M.P.SREEKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID, J. -------------------------------------------S.A. NO. 919 OF 1995 --------------------------------------------** Dated this the 24th day of October, 2008 ## **JUDGMENT** The appellant herein is the plaintiff in O.S. No.349 of 1986 on the file of the Principal Munsiff's Court, Kasaragod. He is also the appellant in A.S. No.19 of 1992. The suit was filed for mandatory and permanent prohibitory injunction. The trial court allowed the suit in part which was confirmed in appeal. Hence, this Second Appeal. The parties herein are referred to as the plaintiff and defendants as in the suit 2. When the matter came up for admission, this Court issued notice on all the substantial questions of law raised in the appeal memorandum which are as follows: - A) Is not a prayer for mandatory injunction for removal of illegal structures put up by the defendants after trespass, sufficient on the facts of this case to entitle the plaintiff to relief sought for? B)Whether the lower appellate court was S.A. NO. 919/1995 2 correct in law in relegating the plaintiff to a suit for recovery of possession after entering findings the existence of objectionable constructions? - C)Whether on a true construction of Ext.A1 lease deed the lessees are entitled to put up any constructions, and are not those constructions liable to be removed by suing for mandatory injunction? - D)Whether the lower appellate court was justified in denying relief of removal of illegal structures to the plaintiff by misconstruing the terms of Ext.A1 lease deed? 3. It is the case of the plaintiff that plaint A schedule property and plaint B schedule building which is a part of a large building situated in plaint A schedule property belongs to him and that plaint B schedule building portion was leased out to the first defendant and her husband as per Ext.A1 lease deed. The first defendant and her deceased husband are the lessees. It is the further case of the plaintiff that Ext.A1 lease deed does not permit the lessees to make any improvements or alterations to the building. The lessees were given the right to use a bathroom situated on the north-western side of the building and one of the lavatories situated on the south-western side. They were also permitted to use a washing stone placed in the property. According to the plaintiff, the first defendant and her husband put up a bath shed touching the house, placed a new S.A. NO. 919/1995 3 washing stone in the property and also put up a door on the eastern wall of the building. The plaintiff, therefore, filed the suit for permanent prohibitory injunction restraining the defendants from putting up new constructions, from making any alterations or changes to the B schedule building and from committing any waste in the suit property. He also prayed for a mandatory injunction to remove the illegal structures. 4. In the joint written statement filed by the defendants it is contended inter alia that the plaintiff has no title to the suit properties, that the plaint B schedule house is not a portion of a big building and that the allegations that they have replaced the door, installed a washing stone and had put up a bath shed are incorrect. On the side of the plaintiff PW.1 was examined and Exts.A1 to A9(d) were marked. Exts.C1 to C3 are the reports and plans submitted by the Commissioner. No evidence, either oral or documentary was adduced by the defendants. 5. Ext.A1 lease deed proves that the building portion has been leased in favour of the first defendant. Clauses in the lease deed specifically stipulate that the lessee shall not put up any structures or make any repair works without the consent and knowledge of the lessor. It is the case of the plaintiff that in contravention of the provisions in the lease S.A. NO. 919/1995 4 deed, the lessees had put up structures in the plot. The allegation in the plaint is that the structures were put up during the last week of December, 1985. It is contended by the defendants that the structures are very old. At the same time, they had no case that the structures were not put up after the execution of the lease deed and that they had obtained any consent from the lessor. The Commissioner also reported in Ext.C1 that the door and the wash shed do not appear to be old. 6. The trial court disbelieved PW.1 stating that it is very difficult to believe his version that the structures were put up during the last week of December, 1985. Even in the absence of any evidence on the side of the defendants, the trial court concluded that there was acquiescence on the part of the plaintiff and his deceased father. It is very strange that such a finding was entered by the trial court in the absence of any pleading or proof. The mandatory injunction sought for by the plaintiff was declined by the trial court stating that the delay in filing the suit clearly establishes that there has been acquiescence and granted a decree for permanent prohibitory injunction. In the appeal filed by the plaintiff, the lower appellate court confirmed the findings of the trial court, but for a different reason. The lower appellate court held that the finding of the trial court that there was acquiescence on the part of the plaintiff is not S.A. NO. 919/1995 5 sustainable and after referring to Ext.A1 lease deed held that there was no prohibition in Ext.A1 with regard to replacing the door and installing granite stone for washing clothes. The lower appellate court further held that the terms of the lease deed permitted the lessee to carry out repairs and, therefore, it cannot be said that the above acts amount to violation of the lease deed. For the said reason, the appellate court held that the plaintiff is not entitled to dismantle or remove the granite stone plat form and the door on the eastern wall of the building. However, the lower appellate court rightly held that Ext.A1 does not permit construction of any structures, that there was unlawful trespass on the part of the defendants and, therefore, the remedy available to the plaintiff is to seek recovery of possession and not a suit for mandatory injunction. 7. Going by the terms of Ext.A1 lease deed, the plaintiff alone reserves the right to effect construction. There is a clear cut prohibition in putting up any structures or making improvements in the property without the consent and knowledge of the landlord. Admittedly, no consent was obtained for putting up the structures. The defendants have no case that the structures were in existence at the time of execution of Ext.A1 lease deed. S.A. NO. 919/1995 6 8. Learned counsel appearing for the appellant brought to my notice reported decisions of this Court on the subject. He also brought to my notice Section 108 (f), (m) and (p) of the Transfer of Property Act, 1882. There is much force in the contention of the counsel that as per the terms of the lease, the defendants had no authority to effect any construction or make any addition to the building. Ext.A1 lease deed did not authorise the lessee to make any additional construction. Counsel also contended that it has been proved beyond doubt that the constructions were made by the defendants unauthorisedly behind the back of the plaintiff. In such circumstances, it is the prime devoir of the court to avoid multiplicity of proceedings. The court has a duty to either issue mandatory injunction or order recovery of possession. Counsel also cited the decisions reported in **Sreedharan Erady v. Sreedharan, 1988(2) K.L.T. 995, Appukutty Nambiar v. Ratnagiri, 1991(2) K.L.T. S.N. Case No.2** and **Sant Lal Jain v. Avtar Singh, A.I.R. 1985 S.C. 857.** 9. The reasons stated by the trial court and the lower appellate court for dismissing the prayer for mandatory injunction are not sustainable. To avoid multiplicity of suits, the civil court ought to have granted the relief sought for by the plaintiff. Technical considerations may not weigh with the civil court in granting or refusing reliefs. In the circumstances, S.A. NO. 919/1995 7 the trial court shall reappreciate the evidence and examine whether the constructions effected are unlawful and unauthorised. If it is found that the constructions are unlawful or unauthorised, the plaintiff has got every right to seek appropriate relief in accordance with law. The different reasons stated by the courts below for declining the relief of mandatory injunction cannot stand. In the result, the Second Appeal is allowed. The impugned judgments is set aside and the case is remanded to the trial court for denovo consideration. The trial court shall dispose of the suit within a period of six months from the date of receipt of a copy of this judgment. There will be no order as to costs. ## **(HARUN-UL-RASHID, JUDGE)** ## **sp/** S.A. NO. 919/1995 8 ## **HAURN-UL-RASHID, J.** **S.A.NO. 919/1995** **JUDGMENT** **24th October, 2008**