IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 26^TH DAY OF JUNE 2024 / 5TH ASHADHA, 1946 RSA NO. 1406 OF 2004 AGAINST THE JUDGMENT DATED 29.09.2004 IN AS NO.134 OF 1995 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT DATED 21.02.1994 IN OS NO.1532 OF 1991 OF THE ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANT/7TH RESPONDENT/7TH DEFENDANT:

M.A.SATHAR, PROPRIETOR (DIED)

SHEEFA ELECTRICALS AND FORT BAKERY,, PAZHAVANGADI, THIRUVANANTHAPURAM.

(ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANTS AS PER THE ORDER DATED 23.01.2009 IN I.A.NO.288/2008)

9DIE ADDITIONAL APPELLANTS:

2 2. A. MOHAMMED IQBAL, S/O LATE M.A.SATHAR TC45/667 (1), BEEMAPPALLY, THIRUVANANTHAPURAM

3. A. ZAFARULLA KHAN, S/O LATE M.A.SATHAR TC45/667 (2), BEEMAPPALLY, THIRUVANANTHAPURAM

4. A.ZAKIR HUSSAIN S/O LATE M.A.SATHAR TC45/667 (1), BEEMAPPALLY, THIRUVANANTHAPURAM

5. KAMARUNNIZA, D/O M.A.SATHAR KARIM MANZIL, NEAR KADINAMKULAM PANCHAYATH CHITTATTUMUKKU, KANIYAPURAM THIRUVANANTHAPURAM BY ADVS.

SRI.GOPAKUMAR R.THALIYAL SRI.EBY GEORGE RESPONDENTS/APPELLANT, RESPONDENTS 1 TO 6/ PLAINTIFF, DEFENDANTS 1 TO 6:

1 THIRUVANANTHAPURAM CITIZENS PROTECTION FORUM, REGISTERED UNDER THE CHARITABLE AND SCIENTIFIC AND CULTURAL SOCIETIES ACT, REP. BY ITS, PRESIDENT M.KRISHNA NAIR, RESIDING AT PLOT NO.18,LEKSHMI VIHAR, PADMA NAGAR, FORT, THIRUVANANTHAPURAM

2 STATE OF KERALA REP. BY ITS CHIEF SECRETARY, SECRETARIAT,, THIRUVANANTHAPURAM.

3 THE DISTRICT COLLECTOR THIRUVANANTHAPURAM.

4 THE CITY CORPORATION OF THIRUVANANTHAPURAM, REP. BY ITS COMMISSIONER,, CORPORATION BUILDINGS, NEAR MUSEUM,, THIRUVANANTHAPURAM.

5 CITY POLICE COMMISSIONER THIRUVANANTHAPURAM, THYCAUD P.O.

6 DIRECTOR OF ARCHEOLOGY SASTHAMANGALAM, THIRUVANANTHAPURAM. 7 THE COMMANDANT MADRAS REJIMENT NILAGIRIS, WHO IS IN THE MANAGEMENT OF, GANAPATHY TEMPLE, PAZHAVANGADI,, THIRUVANANTHAPURAM.

BY ADVS.

R4 BY SRI N. NANDAKUMARA MENON (SR)

SRI SUMAN CHAKRAVARTHY R1 BY SRI JOHN K JOSEPH SMT MANJUSHA MOHANDAS SMT K NITHYA R2 BY SRI R.S. AJITH KUMAR R2,R3,R5 AND R6 BY GOVERNMENT PLEADER SRI JAYAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

“C.R.”

K. BABU, J -------------------------------------------------

R.S.A. No. 1406 of 2004 ------------------------------------------------- Dated this the 26th day of June, 2024

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 endanger