Decided on July 18,2017

Pathiyottil Narayanan Vydiar Appellant
DEVADASAN Respondents


K. Ramakrishnan, J. - (1.) The plaintiffs in OS.No.374/1992 on the file of the Munsiff Court, Kozhikode -I are the appellants herein. The suit was one filed by the original plaintiff for mandatory injunction directing the defendant to remove the unauthorised construction made in the B schedule property. It is alleged in the plaint that plaint A schedule property belongs to the 1 st plaintiff and it was entrusted by her husband to the defendant on 02.01.1956 as per Ext.A1 kychit. The defendant is entitled to possess the building only as a building tenant. While so, he trespassed into a portion of the plaintiffs' property and constructed B schedule structures in that portion without the knowledge and consent of the plaintiffs. He had no right or authority to alter the present construction of the building as well. When it was brought to the knowledge of the plaintiffs regarding the unauthorized construction, she sent Ext.A2 notice on 29.1.1983 and also on 18.7.1987, to which defendant sent Ext.A6 reply notice with false allegations. So she filed the suit for mandatory injunction directing the defendant to demolish the B schedule construction and surrender portion of that land covered by the structure.
(2.) The defendant entered appearance and filed written statement admitting the tenancy created in respect of plaint A schedule building as per Ext.A1 kychit. According to him, the description of the building shown in the original kychit is not correct. On the northern and eastern side of the building there is a lane having 6 feet width, but the boundaries are shown as the remaining portion of the property. He had not encroached into any portion and constructed any building and he had only made improvements to the existing building with the consent of the landlady. The plaintiffs sent notice during January 1974, alleging some alterations said to have been done by the defendant. Thereafter she filed a petition before the Rent Control Court seeking eviction under Section 11 (2) (b), 11(4) (i) and 11(4) (iii) of Act 2 of 1965 and that petition after evidence was dismissed, confirmed in the appeal by the Rent Control Appellate Authority and in the revision by this Court. The suit is not maintainable as there is no prayer for recovery of possession. According to the defendant, the suit was filed only to harass him, he had not made any structures on the northern and eastern side of the existing building. So he prayed for dismissal of the suit.
(3.) On the basis of the pleadings, the following issues were framed by the court below: "1. Whether the allegation that the plaintiff has got right over the property as per document No.8084/66 is true? 2. Whether the defendant has committed any waste in respect of the building ? Addl.Issue No.3 Whether the plaintiffs are entitled to get the mandatory injunction as prayed ? Reliefs and costs".;

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