APPUKUTTY NAMBIAR Vs. RATNAGIRI

JUDGEMENT

(1.) DEFENDANT in a suit for mandatory injunction is the appellant in the second appeal. The suit was decreed as prayed for and the same was confirmed In A. S.198 of 1983 on the file of Sob Court, Badagara. Hence, this second appeal.

(2.) THE brief facts of the case are as follows: Respondent - plaintiff Is the owner of a building which has got eight shop rooms in a row. Out of these, four rooms face the Perambra main road and 3 rooms face towards the road which leads to the Elamaran Kulangara temple. One of these shop rooms was let out to the defendant on 14-11-1980 on a monthly rent of Rs. 50/- for a period of 3 months. The plaintiff would contend that at the time of lease the defendant agreed that on the termination of the tenancy he would surrender possession of the building without effecting any alteration. For the row of shop rooms there is a common verandah. The case of the plaintiff is that the defendant enclosed the verandah by using iron grills. It is also alleged that the defendant erected wooden frames by boring walls and roof of the building and he tampered with the flooring. This, according to the plaintiff, is against the terms of the lease and, therefore, he filed the suit for removal of these structures.

(3.) LEARNED counsel for the appellant relied on a decision reported in Viswanathan v. Porichu (1985 KLT 551) that the construction effected by the defendant is not unauthorised or not in violation of S.108 of the Transfer of Property Act. It is a case where the tenant replaced the wooden shutters with collapsible rolling shutters and the landlord contended that it was an unauthorised construction in violation of S.108 of the Transfer of Property Act. The facts of that case disclosed that the building therein had only wooden shutters in its front portion and the tenant was doing business in watch repairing and he was keeping valuable articles in the shop. So, in order to provide sufficient security foe his valuable articles he fixed collapsible iron rolling shutters. Of course, the shutters had to be fastened with two iron posts fixed on two sides. This Court was of the opinion that the construction effected by the tenant did not amount to material alteration. But, in the instant case, the tenant enclosed the verandah. The verandah was intended for common use. The defendant tenant fixed iron grills and naturally he had to bore the walls and roof to facilitate this construction. There is nothing in evidence to indicate that he had obtained consent of the plaintiff. Under the above circumstances, Viswanathan v. Porichu (1985 KLT 551) has no application to the facto of this case and the decree and judgment passed by the courts below are not liable to be interfered with. Second appeal fails and the same is dismissed with costs.