Thomas Kurian vs Thomas

Justice Thomas P. Joseph

The plaintiff in O.S. No. 18 of 2002 of the Munsiff's Court, Changanasserry is aggrieved by the dismissal of the suit and the decree on the counter claim, confirmed by the Additional District Court, Kottayam in A.S. No. 355 of 2009. The appellant-plaintiff is a tenant of item No. 1, a room in the storied building belonging to the respondent and which abuts the Changanassery-Vazhoor road. The appellant is doing business in opticals in item No. 1. He has put up a name board (item No. 2 in the plaint schedule) in front of that room at the time of letting itself. According to the appellant, item No. 1 is situated about 8 feet below the road level. The respondent attempted to remove the name board and hence the suit for injunction.

The respondent while resisting the suit raised a counter claim. He claimed that item No. 1 is situated four feet below the road level and that the appellant had agreed not to make any change to the premises or cause inconvenience to other tenants of the building. The appellant unauthorizedly installed the name board on 20.10.2001. That name board obstructed the view of other tenanted premises in the building. Hence the counter claim to direct the appellant remove the name board.

The trial court found that appellant has unauthorizedly put up the name board on 20.10.2001, that it obstructs the view of other tenanted premises in the building and hence he is liable to remove the name board. Accordingly the suit was dismissed and the counter claim was allowed. That judgment and decree were confirmed by the first appellate court. Hence this Second Appeal.

The learned Senior Advocate for the appellant has contended that what is prohibited u/s 108 of the Transfer of Property Act is putting up of "structures" which is distinguishable from "fixture". According to the learned Senior Advocate, the name board is only a "fixture". The name board does not in any way cause inconvenience to the other tenants of the building and hence dismissal of the suit and the decree on the counter claim cannot be sustained.

I am given a copy of Ext.C2, report of the Advocate Commissioner. The Advocate Commissioner has reported that though item No. 2 (name board) as such does not cover item No. 1 from the public road, it blocks partially the view of some of the rooms on the 2nd and 3rd floors. Though it is the case of the appellant that he had installed the name board even when item No. 1 was taken on rent, from the oral evidence of the witnesses the trial court found that the name board was unauthorizedly put up later. Apart from Ext.C2, there is the evidence of D.Ws.2 and 3 that the name board obstructed the views of their shop rooms from the public road. In Ext.B1, rent deed executed by the appellant, true, there is no term restraining him from putting up a name board but he has undertaken not to cause inconvenience to the other tenants of the building. The trial court has found that installation of the name board causes inconvenience to the other tenants of the building. The appellant is not entitled to put up a name board causing inconvenience to the other tenants. He therefore, is liable to remove the same. That is a finding of fact entered by the trial court and confirmed by the first appellate court based on evidence which involves no substantial question of law requiring a decision by this Court.

Second Appeal is dismissed.

All pending Interlocutory Applications will stand dismissed.