A.Rajan and A.Saminkutty v. T.K.Kumari Kamalam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).NO. 14894 OF 2008(W) -------------------------- {CMA.25/2007 OF THE DISTRICT COURT,KOZHIKODE IN IA 354/07 IN OS.33/2007 OF THE PRINCIPAL MUNSIFF'S COURT, KOZHIKODE-II} .................... PETITIONER(S): --------------- 1. A.RAJAN, S/O.IMBICHIKUTTY, VARAYIL HOUSE, AZHAVATTAM, VELAYANAD AMSOM, KOZHIKODE TALUK,KOZHIKODE DIST. 2. A.SAMINKUTTY, S/O.IMBICHIKUTTY, ARAMBACHALIL HOUSE, VELLAIKODE, KOZHIKODE DIST. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): --------------- T.K.KUMARI KAMALAM, D/O.P.V.SEMI, KALPAKA, KAZABE AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DIST,. ADVS. SRI.BIJU ABRAHAM & SRI.B.G.BHASKAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).No. 14894 of 2008 :: ::** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** EXT.P1: TRUE COPY OF THE PLAINT IN O.S.33/2007, MUNSIFF'S COURT, KOZHIKODE. EXT.P2: TRUE COPY OF THE AFFIDAVIT AND PETITION (I.A.354/2007 IN O.S.33/2007 MUNSIFF'S COURT, KOZHIKODE. EXT.P3: TRUE COPY OF THE WRITTEN STATEMENT FILED IN O.S.33/2007 MUNSIFF'S COURT, KOZHIKODE. EXT.P4: TRUE COPY OF THE ORDER DATED 2.3.2007 IN I.A.354/2007 IN O.S.33/2007 MUNSIFF'S COURT, KOZHIKODE. EXT.P5: TRUE COPY OF THE JUDGMENT, DATED 13.4.2007 IN C.M.A.25 OF 2007, DISTRICT COURT, KOZHIKODE. ## **RESPONDENTS' EXHIBITS:** - EXT.R1(A): TRUE COPY OF THE PLAINT IN O.S.260/2008 ON THE FILES OF MUNSIFF COURT, KOZHIKODE -II. - EXT.R1(B): TRUE COPY OF THE ORDER DATED 27.06.1986 OF THE TALUK LAND BOARD, KOZHIKODE IN TLB(K)19/85. - EXT.R1(C): TRUE COPY OF THE ORDER OF THE LAND REFORMS APPELLATE AUTHORITY, KANNUR DATED 21.02.2006 IN A.A.128/97. - EXT.R1(D: A SKETCH SHOWING THE PROPERTY LEASED TOME AND THE ADJACENT PROPERTY INCLUDED IN THE INVALID LEASE, [COVERED BY THE KYCHIT OF THE DEFENDANTS]. - EXT.R1(E): TRUE COPY OF THE KYCHIT DATED 16.2.1964 EXECUTED BY THE DEFENDANTS TO MADHAVI [BASED ON WHICH THEY APPLIED TO THE LAND TRIBUNAL FOR JENM PURCHASE). - EXT.R1(F): TRUE COPY OF THE KYCHIT EXECUTED BY VELAYUDHAN AS GUARDIAN OF ATTUPURATH RAJAN TO MADHAVI DATED 20.02.1964. **WP(C).No. 14894 of 2008 :: ::** - EXT.R1(G): TRUE COPY OF THE KYCHIT EXECUTED BY AMMU AS GUARDIAN OF PREMA TO MADHAVI DATED 03.03.1964. - EXT.R1(H): TRUE COPY OF THE KYCHIT EXECUTED BY RAGHAVAN TO MADHAVI. - EXT.R1(I): TRUE COPY OF THE INJUNCTION APPLICATION NO.I.A.1297/2008 IN O.S.260/2008 ON THE FILES OF MUNSIFF COURT KOZHIKODE -II DATED 22.03.2008. //true copy// P.S. To Judge SK/- ## **S.S.SATHEESACHANDRAN, J. -----------------------------------------W.P.(C).NO.14894 of 2008 -----------------------------------------Dated this the 23[rd] day of March, 2010** ## **J U D G M E N T** The defendants in O.S.No.33 of 2007 on the file of the Munsiff Court, Kozhikode has filed this writ petition challenging Ext.P5 judgment rendered by the learned District Judge, Kozhikode confirming Ext.P4 order of injunction passed by the learned Munsiff, Kozhikode-II, restraining the petitioners/defendants from alienating the plaint property till disposal of the suit. 2. Short facts giving rise to this writ petition may be summed up thus: The respondent/plaintiff instituted the above suit for a decree of perpetual prohibitory injunction restraining the defendants from creating any document of transfer over the plaint property on the basis of the pattayam issued by the Land Tribunal and from inducting any stranger into the property till the final ## **W.P.(C)No.14894/08** ## **:: 2 ::** disposal of the proceedings under the Kerala Land Reforms Act, for short, the 'Act', for purchase of the jenmam right initiated by the defendants. In the above suit, they applied for an interim injunction identical to the main relief canvassed in the suit. Though the application for injunction was resisted by the defendants impeaching even the entertainability of the suit contending that the civil court has no jurisdiction to adjudicate the disputes projected in the lis apart from controverting the discretionary relief of injunction applied for on its merits, the learned Munsiff granted an interim order of injunction vide Ext.P4 order. Challenge raised against Ext.P4 order by way of an appeal by the defendants was negatived by the learned District Judge confirming the order of injunction vide Ext.P5 judgment. 3. Ext.P1 is the copy of the plaint. The case of the plaintiff as per the allegations raised in the plaint ## **W.P.(C)No.14894/08** ## **:: 3 ::** is that her mother, late P.V.Madhavi leased out an extent of 10 acres of land, adjacent to the land leased to her, in favour of the defendants. The defendants applied for purchase of jenmam rights in respect of 10 acres of land. The Land Tribunal dismissed that application, but, on appeal preferred by them the claim of the defendants was upheld. Though the defendants were entitled to get pattayam over only 10 acres of land, the Land Tribunal ordered to grant pattayam for an area of 11.88 acres. An application moved by the plaintiff and other legal heirs of late P.V.Madhavi to rectify the mistake was dismissed by the Land Tribunal. Against the order dismissing the application, the applicants have preferred an appeal as A.A.No.72 of 2006 before the Appellate Authority and it is pending. Setting forth such a case, the plaintiff sought for a decree of perpetual prohibitory injunction alleging that the defendants anticipating a reversal of the order of ## **W.P.(C)No.14894/08** ## **:: 4 ::** the Land Tribunal are planning to transfer the suit property 11.88 acres, to defeat the appeal preferred by them. The excess land of 1.88 acres covered by the purchase certificate issued in favour of the defendants over and above 10 acres, which alone was leased to her by late P.V.Madhavi, according to the plaintiff, is part of the property leased to the plaintiff by the above said Madhavi, her mother. The plaintiff canvassing such a case and raising an apprehension as indicated above, sought for a decree of perpetual prohibitory injunction to restrain the defendants from “creating any documents purporting to alienate 11.88 acres in RS.50/2 of Olavanna amsom on the basis of the pattayam in O.A.No.2844 of 1976 or otherwise, and from inducting any stranger into possession of any such property, till the final disposal of the proceedings under the Act for purchase of jenmam rights initiated by the defendants”. ## **W.P.(C)No.14894/08** ## **:: 5 ::** 4. In the given facts of the case, I find it is quite unnecessary to refer to the contentions raised by the defendants (writ petitioners) resisting the suit and also the application for interim injunction. There is not even a whisper of any fraud in the issue of the purchase certificate by the Land Tribunal for the suit property 11.88 acres in favour of the defendants. More over the suit being one for a decree of perpetual prohibitory injunction alone, even if any allegation of fraud is imputed in the issue of the purchase certificate, that will not clothe the civil court with any authority to examine that question in view of the mandate under Section 72K (2) of the Act, which reads thus: **“The certificate of purchase issued under sub section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates.”** ## **W.P.(C)No.14894/08** ## **:: 6 ::** In **Ahmmed Kutty v. Mariakutty Umma (2000 (1) KLT 829)** , the apex court has held “when the enactment enjoined that any evidence would be treated as conclusive proof of certain factual position or legal hypothesis the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness”. Purchase certificate had been issued for a larger extent of the property than applied for by the defendants in their favour by the Land Tribunal and an appeal preferred by the plaintiff and others, the legal heirs of the landlord, against the dismissal of an application moved by them for rectifying that mistake by the Land Tribunal, before the Appellate Authority is pending, is the case projected by the plaintiff for the decree of perpetual prohibitory injunction in the suit. Even assuming that the Land Tribunal went wrong in issuing a purchase certificate for a larger extent than what is applied for by the ## **W.P.(C)No.14894/08** ## **:: 7 ::** applicant, the correctness of that purchase certificate or its propriety and correctness cannot be impeached before a civil court. 5. Transfer is an incident of ownership over a property recognised as a public policy and enshrined under the statute, Transfer of Property Act. Even when a transfer of property is made with condition or limitation unless it falls within the exemptions specified Sections 10 and 11 of the Transfer of Property Act lay down the principle that such conditions of restraint on alienation should be treated as void. That is founded on the principle of public policy allowing free circulation and dispossession of property. When a plaintiff files a suit that till his appeal is decided by the appellate authority under the Land Reforms Act, the defendants should be restrained from alienating the suit property by a decree of perpetual prohibitory injunction, what he seeks is a partial restraint on transfer of the property ## **W.P.(C)No.14894/08** ## **:: 8 ::** for a short period. Leaving aside the question whether such a suit for perpetual prohibitory injunction is hit by the provisions of the Kerala Land Reforms Act, the larger question emerges for consideration whether restraint on alienation for a particular period by way of an injunction as canvassed in the suit, is repugnant to and violative of Section 10 of the Transfer of Property Act. Even a restraint for a short period is void under Section 10 of the above Act. It is seen that both the courts below have not looked into the frame of the suit nor the reliefs canvassed with reference to the statutory provisions covered by the Kerala Land Reforms Act and also the Transfer of Property Act. Strangely enough, both the courts have also not gone into the question whether under the provisions of the Specific Relief Act, a decree of perpetual prohibitory injunction whether it be for a limited period or not, as the main relief in a suit is entertainable. The learned ## **W.P.(C)No.14894/08** ## **:: 9 ::** Munsiff in Ext.P4 order without giving any reason, but expressing a view that since the suit is for injunction, the court has jurisdiction to grant interim injunction applied for allowed the application of the plaintiff. The learned District Judge, in appeal, without adverting to the statutory bar under Section 125(1) of the Kerala Land Reforms Act, but making reference to whether the Land Tribunal has competency to grant injunction or not, had confirmed the interim injunction granted by the court below vide Ext.P5 judgment. Very many questions to be determined by the Land Tribunal are adverted to and referred to in Ext.P5 judgment by the learned District Judge without taking note of the statutory interdiction over the relief canvassed in the suit. 6. In Ext.P5 judgment, the learned District Judge has even ignored the fact that the perpetual prohibitory injunction has been canvassed in respect of ## **W.P.(C)No.14894/08** ## **:: 10 ::** 11.88 acres of land for which purchase certificate had already been issued in favour of the revision petitioner/defendant by the Land Tribunal and the dispute projected by the plaintiff was that the certificate included 1.88 acres, that alone, over and above what was stated in the application presented before the Tribunal. The very fact that the injunction was applied for over the entire property leaving aside all other questions and the suit has been filed for a relief of perpetual prohibitory injunction till a decision is arrived at by the appellate authority in the appeal preferred by the plaintiff are circumstances indicating that the plaintiff was not entitled to the discretionary relief of injunction. The learned counsel for the revision petitioner has submitted that the appeal preferred before the appellate authority on the basis of which the interim injunction was claimed in the suit has already been dismissed by that authority. The ## **W.P.(C)No.14894/08** ## **:: 11 ::** submission made as above has not controverted by the learned counsel for the respondent/plaintiff, who, however, contended that a revision is proposed to be filed against the decision of the appellate authority, and so much so the order of injunction passed in the suit has to be retained and it is not liable to be interfered with in exercise of the jurisdiction vested under Article 227 of the Constitution. It is also submitted that the plaintiff has filed another suit wherein recovery of possession of the excess area allowed under the purchase certificate in favour of the defendant/revision petitioner is sought for. Whatever that be, in the given facts of the case, I find that Ext.P4 order passed by the learned Munsiff as confirmed by Ext.P5 judgment of the learned District Judge is unsustainable under law and facts and it is liable to be set aside. I do so. 7. The learned Munsiff is directed to examine the maintainability of the suit with reference ## **W.P.(C)No.14894/08** ## **:: 12 ::** to Order VII Rule 11(d) of the Code of Civil Procedure and pass appropriate orders within one month from the date of receipt/production of a copy of this judgment. Pendency of any other suit, in respect of the subject matter, whatever that be, shall not be given any merit by the court below in deciding the question whether the civil court has jurisdiction to entertain the present suit. Writ petition is disposed of as above. **Sd/S.S.SATHEESACHANDRAN JUDGE** sk/- ## **//true copy//**