JUDGMENT :

This Regular Second Appeal is directed against the judgment and decree dated 29.09.2004 in A.S.No.134 of 1995, passed by the III Additional District Court, Thiruvananthapuram, which arose from the judgment and decree dated 21.02.1994 in O.S.No.1532 of 1991 of the Additional Munsiff’s Court (Rent Control Court), Thiruvananthapuram.

2. The plaintiff and defendant Nos. 1 to 6 are the respondents.

3. The appellant died during the proceedings, and his legal representatives were impleaded as additional appellants 2 to 5.

4. The suit was instituted for mandatory injunction. The plaintiff is a society, registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, XII of 1955. It is primarily engaged in uplifting the living conditions of Thiruvananthapuram city and also in promoting the citizens’ welfare in scientific, literary and cultural aspects.

5. The Pazhavangadi Fort is very ancient. It is situated adjacent to Sreemahaganapathy Temple at Pazhavangadi. The Fort has been declared as an ancient monument by the Archaeological Department. Any injury caused to the ancient Fort is a cognizable offence punishable under Section 32 of the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1958. Defendant No.7 obtained Kuthakapattom rights in a property adjacent to the Fort. He made a structure encroaching upon the Government land using the western wall of the Fort as the eastern wall. The ancient Fort has been tampered with. The prestige, beauty and dignity of the Fort is hence endangered.

6. The plaintiff pleaded that the City Corporation issued a licence to defendant No.7 to put up the construction in violation of the Building Rules. The construction is liable to be demolished. Defendant No.7 instituted two suits, O.S.Nos.858 of 1989 and 2561 of 1990, and obtained interim orders in his favour. The Government and the City Corporation have not taken any steps to remove the unauthorised structure. Therefore, the plaintiff sought a mandatory injunction directing defendant Nos. 1 to 6 to remove the encroachment upon the plaint Fort.

7. The City Corporation pleaded that defendant No.7 unauthorisedly extended the structure and the Corporation has initiated steps against the unlawful extension. It is further pleaded that none of the defendants had rendered any assistance or help to defendant No.7 in making the unauthorised construction.

8. Defendant No.7 resisted the suit, contending that the attempt of the plaintiff was to ruin his business. A communal clash occurred near the Fort, and the structure erected by defendant No.7 was damaged. He has not made any unauthorised encroachment as pleaded. The eastern wall of the shop room is not the western wall of the Pazhavangadi Fort as alleged. There is enough space between his shop’s eastern wall and the western wall of the Pazhavangadi Fort. Defendant No.7 pleaded that the construction of the said room was made in terms of the order issued by the Government during the year 1984 as the shop building was destroyed in the fire that occurred in the communal riot on 30.12.1982.

9. The trial Court framed the following issues:-

1.Whether the plaintiff society is in existence, and has it got locus standi to maintain the suit?

2. Is the 6th defendant a necessary party to the suit?

3. Did the 7th defendant make any unauthorised construction?

4. Whether the 7th defendant has committed any illegal act tampering with the ancient Fort.

5. Is the plaintiff entitled to the mandatory injunction prayed?

6.Whether the 7th defendant is entitled to claim compensatory costs.

7.Reliefs and costs.

10. The parties went to trial. On the side of the plaintiff, PWs 1 and 2 were examined and Exts. A1 to A9 were marked. Defendant No.7 gave evidence as DW1 and Exts. B1 to B6 were marked. Ext.C1 was marked as Court Exhibit.

11. The Trial Court dismissed the suit, holding that there is no satisfactory evidence to show that defendant No.7 has effected any unauthorised construction