THATHU Vs. MALABAR S. S. SABHA

JUDGEMENT

(1.) Appellant is the second defendant in O.S 242 of 1980 of the Munsiff's Court, Chavakkad Respondents 1 to 3 (plaintiffs) filed the suit for a prohibitory in junction restraining the defendants from committing any acts of waste in the property or erecting any shed thereon and also for a mandatory injunction directing them to remove the shed constructed unauthorisedly in the property just north of the building in the possession of the appellant as a tenant. The suit was decreed by the Munsiff and the appellant and the 4th respondent (first defendant) are restrained by a permanent injunction from trespassing into the plaint schedule property except the building in which they are residing. Mandatory injunction was granted directing the appellant and the 4th respondent to remove the B schedule shed. If they fail to do so, respondents are given the liberty to remove the same. The judgment and decree of the Trial Court are confirmed by the Additional District Judge, Trichur in A. S.14 of 1986.

(2.) The Trial Court as wall as the lower appellate Court held that the appellant's possession can only be pursuant to Ext. A-1 rent deed. The claim of kudikidappu was found against by both the Courts. S. A. 938 of 1989 filed by the appellant along with defendants 7 and 8 in O. S.223 of 1980 was dismissed by this Court.

(3.) Learned counsel for the appellant submitted that even according to the respondents, appellant is in possession of the building as a tenant and if that be so, he has every right to have the use and occupation of the appurtenant site. Learned counsel for the respondents pointed out that the unauthorised construction of the structure has blocked the entry to the compound of the respondents and on that sole score the unauthorised construction will have to be removed. Appellant's case is that he has put up a shed for keeping his bullocks and cart. He admitted that he is running a tea shop in the shed. As Ext. A-1 real deed discloses that only the building alone was let out and as it specifically shows that the appellant or the first defendant cannot have any legal right to construct any additional structure in the appurtenant site. Courts below were perfectly justified in decreeing the suit. The commissioner's report shows that the shed blocks the entry to the respondents' property and that it was recently constructed,