Dismissed

S. Sreedharan v. the Kottayam Rubber Marketing Co-Op

Kerala HC1 Jun 2012RSA/585/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed second appeals filed by an appellant challenging eviction and injunction orders. The Court held no substantial question of law existed regarding the evidence of a building construction agreement. However, it stayed execution of the eviction decree for four months to allow repair of a structure given to the appellant in a land exchange.

What did the court decide?

Second appeals dismissed; execution of eviction decree stayed for four months subject to filing of affidavit and conditions regarding property preservation.

S. Sreedharan Vs the Kottayam Rubber Marketing Co-Op — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934

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RSA.NO. 585 OF 2010 ( )

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AS.151/2004 OF ADDITIONAL DISTRICT COURT,KOTTAYAM OS.611/2000 OF PRINCIPAL MUNSIFF'S COURT, KOTTAYAM

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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S.SREEDHARAN, S/O.SANKU, AYYAMKULATHU VEETIL, MANGANAM, MUTTAMBALAM KOTTAYAM.

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BY ADVS.SRI.M.J.THOMAS SMT.RUBY K.JOSE

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RESPONDENT/RESPONDENTS/DEFENDANTS:

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1. THE KOTTAYAM RUBBER MARKETING CO-OPERATIVE SOCIETY LTD.NO.778 REPRESENTED BY THE PRESIDENT T.RAMAN BHATTATHIRIPAD, HOUSING BOARD BUILDING, KANJIKUZHI, KOTTAYAM.

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2. MANAGING DIRECTOR, KOTTAYAM RUBBER MARKETING CO-OPERATIVE SOCIETY LTD.NO.778 HOUSING BOARD BUILDING ,KANJIKUZHI,KOTTAYAM.

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3. MOHANAN, S/O.SANKU, KOTTAKUNNEL VEETIL MANGANAM, MUTTAMBALAM, KOTTAYAM.

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BY ADV. SRI.LIJI.J.VADAKEDOM

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-06-2012, ALONG WITH RSA. 586/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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====================================

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R.S.A. Nos.585 & 586 of 2010

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====================================

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Dated this the 01^st day of June, 2012

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J U D G M E N T

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These appeals are brought up from the common judgment and decree passed by the learned Principal Munsiff, Kottayam in O.S. No.611 of 2000 and 283 of 2001, confirmed by the learned Additional District Judge, Kottayam in A.S. Nos.151 and 152 of 2004, respectively.

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O.S. No.611 of 2000 is a suit filed by the appellants for a decree for prohibitory injunction to restrain the first respondent and others from evicting them from the building in the suit property. O.S. No.283 of 2001 is a suit filed by the first respondent in the appeals against the appellants for eviction from the building referred to as item No.2 of the plaint schedule in O.S. No.283 of 2001 (item No.3 of the plaint schedule in O.S. No.611 of 2000).

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The admitted case is that appellants and first respondent exchanged as per Ext.B1, five cents of land belonging to them, respectively. According to the appellants, at the time of exchange there was a building in the 5 cents belonging to them

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R.S.A. Nos.585 & 586 of 2010

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-: 2 :-

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(which was given to the first respondent) and it was agreed between the appellants and first respondent that the latter would construct a building in the five cents belonging to it and being given to the appellants in parity with the building in the five cents belonging to the appellants and being given to the first respondent by way of exchange as per Ext.B1. First respondent constructed a building in the five cents given to the appellants but it is unfit for habitation and not in parity with the building in the five cents given to the first respondent. First respondent denied that there was any such understanding that building would be constructed in the five cents to be exchanged to the appellants in parity with the building in the five cents given to the first respondent.

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Trial court refused to accept the case of appellants and dismissed O.S. No.611 of 2000 while a decree for recovery of possession was granted in favour of the first respondent in O.S. No.283 of 2001. That judgment and decree are confirmed by the first appellate court. Hence these appeals at the instance of the plaintiff in O.S. No.611 of 2000 and defendants in O.S. No.283 of 2001.

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Learned counsel for appellants has referred me to the

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R.S.A. Nos.585 & 586 of 2010

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-: 3 :-

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evidence of D.W.1 (in R.S.A. No.585 of 2010 and first appellant in R.S.A. No.586 of 2010) and D.W.2 tho according to the appellants had a similar exchange of land with similar condition with the first respondent. It is contended by the learned counsel that it is not disputed by the first respondent that it constructed a building in the five cents and given to the appellants on exchange and in that circumstance there is no reason why the evidence of D.Ws.1 and 2 should be discarded.

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Learned counsel for first respondent contended that there was no understanding that a building would be constructed in the five cents to be given to the appellants or that it be in parity with the building in the five cents given to the first respondent. According to the learned counsel, it was a concession made by the first respondent that a building would be constructed for the appellants in the land given to them on exchange. There was also no understanding regarding parity of the buildings.

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True that D.W.2 claimed that he had a similar exchange with the first respondent on a similar understanding that the building to be constructed will be in parity with the building in the property D.W.2 exchanged to the first respondent.

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R.S.A. Nos.585 & 586 of 2010

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-: 4 :-

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It is also true that D.W.2 claimed that he is aware of the understanding between the appellants and first respondent. But it is relevant to note that Ext.B1, exchange deed does not make any mention about construction of the building in the property exchanged to the appellants, not to say about the parity claimed by them.

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Apart from the oral evidence D.Ws.1 and 2 have given, nothing is brought out on record to show that first respondent had undertaken that a building constructed in the five cents or that it will be in parity with the building which existed in the five cents which belonged to the appellants and was given to the first respondent.

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I must bear in mind that under Section 100 of the Code of Civil Procedure, this Court can admit a second appeal only on a substantial question of law. No question of law and much less any substantial question of law is involved in these appeals. Courts below considered the evidence and came to the conclusion that the understanding pleaded by the appellants is not proved. That decision being based on evidence cannot involve any substantial question of law.

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Learned counsel for appellants requested that since

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R.S.A. Nos.585 & 586 of 2010

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-: 5 :-

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appellants need to repair the building constructed in the five cents and exchanged to them and it may take at least six months' time, they may be allowed to stay in item No.3 of the plaint schedule in O.S. No.611 of 2000 (item No.2 of the plaint schedule in O.S. No.283 of 2001) for a period of six months. I have heard learned counsel for the first respondent also in that regard. Having regard to the difficulties of appellants stated by the learned counsel I am inclined to grant four months' time from this day to vacate the building but subject to conditions.

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Resultantly, these second appeals are dismissed. But it is directed that delivery of item No.3 of the plaint schedule in O.S. No.611 of 2000 (item No.2 of the plaint schedule in O.S. No.283 of 2001) of the court of learned Principal Munsiff, Kottayam will stand in abeyance for a period of four months from this day subject to the following conditions.

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(i) Appellants shall file affidavit in the court where the decree in O.S. No.283 of 2001 is being executed, within two (2) weeks from this day undertaking to vacate the said building on the expiry of four (4) months from this day without

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R.S.A. Nos.585 & 586 of 2010

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-: 6 :-

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putting forth any claim or objection on any ground whatsoever.

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(ii) Appellants shall not cause any damage to the building, encumber, create documents or induct third parties during the said period of four months.

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(iii) In case affidavit as aforesaid is not filed within the time specified or any of the conditions above stated is violated, it will be open to the first respondent to proceed with execution of the decree in O.S. No.283 of 2001 notwithstanding the time granted hereby.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

S. Sreedharan v. the Kottayam Rubber Marketing Co-Op

Case brief

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S. Sreedharan v. the Kottayam Rubber Marketing Co-Op

Case brief

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