C.M.T. Muhammed Bava and P.V. Moosakkutty alias Bappum v. Nafeesu and Muhammed Kasim

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940** **OP(C).No. 3163 of 2017** **CMA 11/2017 OF SUB COURT, TIRUR OS 166/2017 OF MUNSIFF COURT, TIRUR ------------** ## **PETITIONER/RESPONDENT IN THE APPEAL.** ## **1 C.M.T. MUHAMMED BAVA,** **AGED 61 YEARS, PRESIDENT, VETTAM PADIYAM KUTTILA PADAM JUMA MASJID & REFEEQUAL ISLAM MADRASSA COMMITTEE, VETTAM AMSOM AND P.O., PADIYAM DESOM, PIN-676102.** ## **2 P.V.MOOSAKKUTTY @ BAPPUM,** **S/O.ABDULLAKUTTY, VETTAM PADIYAM KUTTILA PADAM JUMA MASJID & REFEEQUAL ISLAM MADRASSA COMMITTEE, VETTAM AMSOM AND P.O., PADIYAM DESOM, PIN-676102.** **BY SRI.T.SETHUMADHAVAN (SENIOR ADVOCATE) ADV.SMT.N.DEEPA** ## **RESPONDENT(S)/APPELLANTS IN THE APPEAL:** ## **1. NAFEESU,AGED 65 YEARS,** **W/O.CHARACHAM VEETTIL PAZHAYAKATHU ABU @ ABOOBACKER, KAPPATTAKATH KALATHIL HOUSE, VETTOM AMSOM, PADIYAM DESOM, POST VETTOM-676102.** ## **2. MUHAMMED KASIM,** **AGED 42 YEARS, S/O.CHARACHAM VEETTIL PAZHAYAKATHU ABU @ ABOOBACKER, KAPPATTAKATH KALATHIL HOUSE, VETTOM AMSOM, PADIYAM DESOM, POST VETTOM-676102.** **BY SRI.T.KRISHNANUNNI (SENIOR ADVOCATE) ADV. SRI.K.K.MOHAMED RAVUF** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-04-2018, THE COURT ON 09-04-2018, DELIVERED THE FOLLOWING:** ## **PBS** ## **OP(C).No. 3163 of 2017 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1- TRUE COPY OF THE PLAINT IN O.S.NO.166/2017 ON THE FILE OF THE HON'BLE MUNSIFF COURT, TIRUR DATED 22/05/2017.** - **EXHIBIT P2- TRUE COPY OF THE PETITION, I.A.NO.1130/2017 IN O.S.NO.166/2017 ON THE FILE OF THE HON'BLE MUNSIFF COURT, TIRUR DATED 23/05/2017. EXHIBIT P3- A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS HEREIN IN I.A.NO.1130/2017 IN O.S.NO.166/2017 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, TIRUR DATED 06/06/2017. EXHIBIT P4- TRUE COPY OF THE ORDER DATED 25/07/2017 IN I.A.NO.1130/2017 IN O.S.NO.166/2017 ON THE FILE OF THE HON'BLE MUNSIFF COURT, TIRUR. EXHIBIT P5- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.(C)NO.2435/2017 DATED 09/10/2017. EXHIBIT P6- TRUE COPY OF THE JUDGMENT OF THE SUBORDINATE JUDGE OF TIRUR IN C.M.A.NO.11/2017 DATED 25/10/2017. EXHIBIT P7- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.166/2017 BEFORE THE MUNSIFF COURT, TIRUR, DATED 27/10/2017.** - **EXHIBIT P8- TRUE COPY OF THE I.A.NO.2469/2017 DATED 27/10/2017 IN O.S.NO.166/2017.** - **EXHIBIT P9- TRUE COPY OF THE COMMISSIONER'S REPORT AND SKETCH DATED 31/05/2017.** **RESPONDENT'S EXHIBIT NIL** **/TRUE COPY/** **PA TO JUDGE** **PBS 10/4/2018** ## **Sathish Ninan, J. ========================== O.P(C) No.3163 of 2017 ============================= Dated this the 9[th] day of April, 2018** ## **JUDGMENT** Grant of an interim mandatory injunction directing restoration of status quo ante-suit, is under challenge by the defendants. 2. Plaint schedule item No.1 property belonged to the first plaintiff and her husband late Abu @ Aboobecker as per Ext A1 Sale Deed No.2291/1982. On the death of Abu, his rights devolved upon the plaintiffs being the wife and children. Thus the plaintiffs jointly are the owners of plaint item No.1. On the immediate northern side of plaint item No.1 is plaint item No.2. Plaint item No.2 was purchased by the said Abu as per Ext A2 sale deed dated 21.07.1997. On the immediate northern side of plaint item No.2 is a public road namely, Tiroor - Vettom Cheerpu road, running in eastwest direction. On the death of Abu, plaint item No.2 **O.P(C) No.3163 of 2017** -: 2 :- property also vested with the plaintiffs. According to the plaintiffs, plaint item No.2 was purchased for the purpose of having vehicular access from plaint item No.1 to the northern public road. On the immediate eastern side of plaint item No.2 is the property of the defendants. To wreck personal vengeance, the defendants made a construction-basement, with a single layer of laterite stones, at the northern end of plaint item No.2 where it abuts the public road, with the object of obstructing the plaintiffs' vehicular access from the northern public road to plaint item 1. The suit is filed for a mandatory injunction for removal of the obstruction so caused and for prohibitory injunction not to obstruct the enjoyment of plaint item No.2 property. Along with the suit the plaintiff filed I.A No.1130 of 2017, seeking an interim order of mandatory injunction for removal of the obstruction namely, the one row of laterite stones placed at the northern end of plaint item No.2. The **O.P(C) No.3163 of 2017** -: 3 :- defendants/respondents claimed that plaint item No.2 or atleast a portion thereof belongs to Juma Masjid Committee and Rafeequl Islam Madrasa Committee and that it is a Wakf property, and hence the suit is barred under Section 85 of the Wakf Act. The civil court lacks jurisdiction. To substantiate their claim for title they rely on Exts B1 to B5 documents. The learned Munsiff allowed the application granting the relief of interim mandatory injunction. The said order was confirmed in CMA by the learned Sub Judge. Challenging the said orders the defendants have filed this Original Petition. 3. Heard learned Sri.S.Sethumadhavan, learned senior counsel on behalf of the petitioners/defendants and Sri.T.Krishnanunni, learned senior counsel on behalf of the respondents/plaintiffs. 4. Under Order VII Rule 11(d) a plaint shall be rejected where the suit appears, from the averments in the plaint, to be barred by any law. Under Section 83(1) ## **O.P(C) No.3163 of 2017** -: 4 :- of the Wakf Act, if the dispute involved is in respect of a Wakf property, the civil court does not have jurisdiction. A reading of the plaint averments shows that the suit is filed on the specific allegation that plaint item No.2 belongs to the plaintiffs. They trace title to Ext A2 sale deed. In Ext A2 sale deed dated 21.07.1997, the eastern boundary is described as the Madrassa Building and the property being conveyed to the Madrassa. On the same date namely 21.07.1997, Ext B5 sale deed was executed by the same vendor in favour of the Madrassa. In Ext B5 sale deed, the western boundary is described as the property being conveyed to Abu, who is the predecessor of the plaintiffs. The plaintiffs claim right only over the property covered under Ext A2. Therefore, going by the plaint averments and the documents, prima facie, the claim does not relate to Wakf property. Therefore, at this stage, it could not be said that the bar under Section 85 of the Wakf Act is **O.P(C) No.3163 of 2017** -: 5 :- attracted. In Vengode Muslim Jama-ath and Another v. Shajahan and Another [2009 (3) KHC 647 : ILR 2009 (3) Ker. 907], this Court held thus: “...Maintainability of a suit, whatever be the challenge raised thereof, cannot be gone into and a finding entered into in an enquiry under an interlocutory application for injunction. It may be proper for the Court to express an opinion prima facie while disposing an interlocutory application for injunction doubting the jurisdiction of the Court to entertain the suit and its maintainability. However, a challenge on maintainability of the suit, which is admitted and taken on file, has to be raised by any person canvassing such challenge only in compliance of the procedural requirements and normally, it has to be done by filing a written statement in the suit, raising that dispute and, if so advised, seeking for determination of that challenge as a preliminary issue after casting all the issues in the suit as contemplated under O.14 of the CPC. Of course, where jurisdiction of the Court is ousted by statute and the determination of that question does not call for mixed questions of fact and law arising in the suit the party raising such a challenge can do so by filing a proper application setting forth the grounds thereof and the Court can dispose of that **O.P(C) No.3163 of 2017** -: 6 :- petition providing an opportunity to the opposite party to file his counter or objections to that petition. True, from the averments in the plaint, if it is apparent that the Court has no jurisdiction either pecuniary or territorial, to entertain the dispute canvassed, it can always order return of the plaint, at any time, under of the provisions of O.7 R.10 of the Code of Civil Procedure and there is no necessity nor need for framing any preliminary issue under O.14 R.2 for that purpose. However, where issue as to jurisdiction involve an enquiry into facts, it cannot be tried as a preliminary issue and necessarily it has to be tried with the other issues in the suit. In such cases, the normal rule complying the requirements under O.14 CPC has to be followed, and if any issue of jurisdiction is raised, the Court may consider it as a preliminary issue as contemplated under sub-rule (2) of R.2 of O.14 CPC. Any enquiry under sub-rule (2) of R.2 of O.14 CPC has to proceed only if the Court is prima facie satisfied or of opinion that the case or any part thereof may be disposed of on an issue of law only like the jurisdiction of the Court or bar of the suit by any law for the time being in force. However, a determination of that question, after the Court forms a tentative opinion as indicated above, can be proceeded only after settling the issues in the suit in which among other issues maintainability is raised, so that it can be considered as a preliminary issue before considering the other issues involved in the suit. To consider the challenge of maintainability of the suit, **O.P(C) No.3163 of 2017** -: 7 :- whatever be the objections raised by the defendants in the counter to an application for interim injunction, whether it be an ouster of jurisdiction of the Court or the bar under any law for the time being in force interdicting the entertainability of the suit, is not only improper and irregular but erroneous and unsustainable. ........”. In view thereof, it is open for the defendants to raise the necessary pleadings and have issue on jurisdiction raised and considered. 5. In the trial court, an Advocate Commissioner was appointed to conduct a local inspection. She filed Ext C1 report and Ext C2 rough sketch. It was reported that on the northern and southern boundaries of the property belonging to Madrassa there are specific boundaries. As noticed supra, to its west is plaint item no.2. It indicates that the property of the defendants is separately identifiable from plaint item No.2 property. The Advocate Commissioner has reported that obstruction has been caused to vehicular access by making a single ## **O.P(C) No.3163 of 2017** -: 8 :- layer laterite stone construction across and on the northern end of plaint item No.2 where it runs into the public road. The plaintiffs seek for an interim mandatory injunction for removal of the said construction-single layer laterite stones. 6. The learned senior counsel appearing for the petitioners/defendants would vehemently contend that a relief of interim mandatory injunction which has the effect of granting a pre-trial decree in the suit, cannot be granted. It is further contended that an interlocutory order of mandatory injunction could at best be granted to restore the status quo that existed as on the date of suit. Here the plaintiffs are seeking for restoration of status quo ante-suit; it cannot be granted, is the submission. In **Films Rover International Ltd. and others v. Cannon Film Sales Ltd. [1986] (3) All England Law Reports** , it was held thus: “In determining whether to grant an interlocutory injunction the question for the court was not whether the injunction sought was **O.P(C) No.3163 of 2017** -: 9 :- mandatory or prohibitory but whether the injustice that would be caused to the defendant if the plaintiff was granted an injunction and later failed at trial outweighed the injustice that would be caused to the plaintiff if an injunction was refused and he succeeded at trial.” The said judgment was referred to by the Apex Court in **Dorab Cawasji Warden v. Coomi Sorae Warden (1990) 2 SCC 117** wherein the Apex Court held that interim mandatory injunction could be granted to preserve or restore the status quo of the last non-contested status which preceded the pending controversy. Of course, though the court has power to grant an order of interim mandatory injunction, it has to be exercised with great circumspection. The question is, whether on the facts and circumstances of the case, the exercise of such power is warranted. 7. It is not in dispute that the single layer row of laterite stone construction was made recently and few days prior to the institution of the suit. The height of the construction is only one feet. The commissioner has reported regarding the access through plaint item **O.P(C) No.3163 of 2017** -: 10 :- No.2 into plaint item No.1 property from the northern public road. The existence of an access through plaint item no.2 could not be challenged or is at least prima facie proved by Exts C1 and C2 the commissioner's report and sketch, and also Exts A2 and A5 sale deeds. Prima facie it appears that there was no right for the defendants to cause any hindrance to the plaintiffs' access to item 1 through item 2. The commissioner has reported that except item 2 there is no other way for access to plaint item No.1. The existence of pillars marked as 'A' and 'H' in Ext C2 indicates that the property of the defendants is separately identifiable from plaint item No.2. Since the year 1997, ie: date of Ext A2, the plaintiffs are enjoying item 2 unobstructed for vehicular access. The obstruction caused is new. It is argued by the learned senior counsel appearing for the petitioners-defendants that even going by the plaint averments the alleged obstruction was caused on 5.5.2017 **O.P(C) No.3163 of 2017** -: 11 :- but the suit is filed only on 22.05.2017. The delay in institution of the suit itself disentitles the plaintiffs from seeking for an order of interim mandatory injunction, he contends. The learned senior counsel for the respondents/plaintiffs would on the other hand point out that the obstruction was caused when the courts were closed for summer vacation and the ill advised parties immediately rushed before the revenue authorities with a petition which was not fruitful. It is on the reopening of the courts that the suit was filed. The Advocate commissioner has noticed that in plaint item No.2 there is an old building and also a newly constructed foundation of a house. Certain construction materials are stacked there. It is the plaintiffs' case that the obstruction caused prohibits the plaintiffs from taking construction materials from the northern road to plaint item No.1. As noticed supra, the obstruction caused is only by laying a single layer of laterite stones. If an **O.P(C) No.3163 of 2017** **==> picture [73 x 10] intentionally omitted <==** interim order of mandatory injunction is not granted and ultimately the plaintiffs succeed in the suit, it would result in great injustice and injury to the plaintiffs. However, if an interim mandatory injunction is granted and the obstruction is removed, but ultimately the suit is dismissed, the injustice that would be caused to the defendants would be much less in degree. By removal of the single layer of stones, the loss that would be suffered by the defendants, if ultimately they succeed in the suit, would only be the cost of the said construction which is apparently only nominal. Whereas if interim mandatory injunction is not granted, the plaintiff will be denied his vehicular access to plaint item No.1 which will affect them seriously especially in view of the construction work going on in plaint item No.1. No other alternate access to plaint item No.1 has been pointed out or even suggested. 8. Considering the entire facts and circumstances as **O.P(C) No.3163 of 2017** **==> picture [73 x 10] intentionally omitted <==** noticed supra, I am of the opinion that this is a fit case where an order of interim mandatory injunction is to be granted to restore the last non-contested status, as observed by the Apex Court. The injury that would be caused to the plaintiffs by non-grant of injunction would definitely outweigh the injury that would be caused to the defendants by grant of injunction. The courts below have rightly appreciated the circumstances and the materials on record. I do not find any illegality or irregularity warranting interference with the impugned orders. The original petition fails and is dismissed. **Sd/-Sathish Ninan, Judge.** ## **vdv**