IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY, THE 12^TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 RSA NO. 964 OF 2006 AGAINST THE JUDGMENT AND DECREE IN A.S. NO.1/2001 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, KOTTAYAM AGAINST THE JUDGMENT AND DECREE IN O.S. NO.438/1998 OF ADDITIONAL MUNSIFF COURT ,KOTTAYAM APPELLANTS/APPELLANTS/DEFENDANTS:

1 M.ABDUL KAREEM, (DIED) (RECORDED)

SALEENA MANZILIL,KARAPUZHA KARA, KOTTAYAM VILLAGE.

(THE APPELLANTS 2 AND 3 ARE RECORDED AS THE LR'S OF THE DECEASED 1ST APPELLANT VIDE ORDER DATED 08.04.2008 IN IA.910/2008.)

2 ZULFIKKAR, S/O ABDUL KAREEM SALEENA MANZILIL, KARAPUZHA KARA,, KOTTAYAM VILLAGE.

3 HUMAYOON, S/O ABDUL KAREEM SALEENA MANZILIL, KARAPUZHA KARA,, KOTTAYAM VILLAGE.

BY ADVS.

SRI.MATHEW JOHN SUJESH MENON V.B.

RESPONDENT:

HASEENA SHAMSUDHIN W/O.SHAMSUDHIN, SADHAR MANZILIL,, KUMMANAM KARA, CHENGALAM VILLAGE,, REP. BY HER POWER OF ATTORNEY HOLDER SADHARUDHIN,, S/O.ABDUL KHADER, OF DO. DO.

BY ADVS.

BIJU K. VAVA SRI.V.P.REGHURAJ SRI.V.SHYAM V.GIRISHKUMAR SUNITHA.K.KALATHIL C.SREEKALA THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON

29.03.2023, THE COURT ON 12.04.2023 DELIVERED THE FOLLOWING:

JUDGMENT This Regular Second Appeal has been directed against the judgment and decree in A.S.No.1/2001 on the file of Sub Court, Kottayam, which in turn arise out of the judgment and decree in O.S.No.438/1998 on the file of Additional Munsiff's Court, Kottayam.

2. Appellants are the defendants in the above suit.

Pending the R.S.A., first appellant died and appellants 2 & 3 are recorded as the legal heirs of the deceased first appellant. The suit has been filed by the respondent/plaintiff seeking a permanent prohibitory injunction for restraining the appellants/ defendants (hereinafter be referred as the defendants) from trespassing into the plaint schedule room No.XIV/701 in Kottayam Municipality. The first defendant had been in possession of the plaint schedule property room as a tenant while the plaintiff purchased the property including the plaint schedule room. After the purchase plaintiff issued registered notice demanding arrears of rent. After that first defendant surrendered the building after paying the arrears of rent, on 30.07.1997. On 30.05.1998 the defendants made attempt to trespass into the plaint schedule room, hence the suit has been filed.

3. Defendants filed written statement with counter claim denying the possession of the room by the plaintiff or the power of attorney holder. The plaint schedule room is in possession of the first defendant as a tenant along with his sons who are defendants 2 and 3 and they conducted business in the name and style 'Olimpic Agencies' at Pulimood Junction. The plaintiff's power of attorney holder and his men broke open the main lock of the plaint schedule room and forcibly removed the articles kept therein. The suit has been filed thereafter without any bonafides. After the purchase of property by the plaintiff an advocate notice was sent to the 1^st defendant claiming arrears of rent. On receipt of notice a cheque drawn on District Co- operative Bank, Kottayam was issued to the plaintiff for encashment and the plaintiff received the amount. A receipt was also issued in favour of the power of attorney holder of the plaintiff with regard to the same. The third defendant went to see the power of attorney holder subsequently to pay the rent but the receipt issued was forcibly taken and torn away and the plaintiff threatened the 1^st defendant and asked to surrender the building portion without any delay. Thereafter third defendant filed complaint before Superintendent of Police on 28.05.1998. The building was never surrendered to the plaintiff as alleged. The first defendant paid electricity consumption charge subsequent to 30.07.1997. At the time of forceful dispossession, telephone was kept inside the building and plaintiff attempted to create documents after trespass. No business is being conducted by the pl