K. Surendran Purameri Kovilakam VettaKoromakan, Paradevada Kshetra Samarakshna Samithi, Secretary, Kandoth House, Edacheri, Vatakara, Kozhikode District v. Illath Kuzhiyil Kunjikrishna Kurup and Manalilthazha Asokan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939** ## **OP(C).No. 2920 of 2017 (O)** ## **---------------------------** **(AGAINST THE ORDER 19.09.2017 IN CMA 3/2017 IN OS 219/2016 ON THE FILES OF MUNSIFF COURT, NADAPURAM)** **PETITIONER(S)/PLAINTIFF:** **--------------------------------------** **K. SURENDRAN PURAMERI KOVILAKAM VETTAKORUMAKAN, PARADEVADA KSHETRA SAMARAKSHNA SAMITHI, SECRETARY, KANDOTH HOUSE, EDACHERI, VATAKARA, KOZHIKODE DISTRICT.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA SRI.T.S.NEJIMUDDIN SRI.H.PRAVEEN (KOTTARAKARA)** ## **RESPONDENT(S)/DEFENDANTS:** **-----------------------------------------------** ## **1. ILLATH KUZHIYIL KUNJIKRISHNA KURUP, S/O. KELAPPAN, PUTHUPANAM P.O., VATAKARA, KOZHIKODE DISTRICT- 673 105** ## **2. MANALILTHAZHA ASOKAN** **S/O. CHEKKOTTI, PUTHUPANAM P.O., VATAKARA, KOZHIKODE DISTRICT – 673 105** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **hmh** ## **OP(C).No. 2920 of 2017 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.219/2016 OF MUNSIFF COURT, NADAPURAM.** - **EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION FOR INJUNCTION FILED AS IA 1215/2016 IN OS 219/2016.** - **EXHIBIT P3 TRUE COPY OF THE ORDER IN IA 1215/2016 IN O.S. 219/2016** - **EXHIBIT P4 TRUE COPY OF THE APPEAL MEMORANDUM DATED 11.04.2017.** - **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND PETITION FILED IN SUPPORT OF IA 367/2017.** - **EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN 367/2017 IN CMA 3/2017.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN OPC 2442/2017 DATED 09.08.2017.** - **EXHIBIT P8 TRUE COPY OF THE ORDER IN CMA 3/2017 OF THE SUB COURT VATAKARA DATED 19.09.2017.** **RESPONDENT(S)' EXHIBITS : NIL ---------------------------------------// True copy //** **PA to Judge** ## **hmh** ## **ANIL K.NARENDRAN, J.** =================== **O.P(C) No.2920 of 2017** ======================= Dated this the 13[th] day of October, 2017 ## **JUDGMENT** The petitioner who is the plaintiff in O.S.No.219 of 2016 on the file of the Munsiff’s Court, Nadapuram, is before this Court in this original petition filed under Article 227 of the Constitution of India seeking an order to set aside Ext.P3 order dated 22.03.2017 of the said court in I.A.No.1215 of 2016 and Ext.P8 order dated 19.09.2017 of the Sub Court, Vatakara in C.M.A.No.3 of 2017, arising out Ext.P3 order. The petitioner has also sought for an order directing the Munsiff’s Court, Nadapuram to hear and dispose of O.S.No.219 of 2016 within a time frame to be fixed by this Court and to defer alienation of the plaint schedule property in that suit until a decision is taken. 2. On 05.10.2017, this Court issued urgent notice on admission to the respondents/defendants through special messenger and the case was ordered to be listed today for further consideration. Despite service of notice, none appeared for the respondents/defendants. O.P(C) No.2920 of 2017 2 3. Heard the learned counsel for the petitioner/ plaintiff. 4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Exts.P3 and P8 orders, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. O.S.No.219 of 2016 is one filed by the petitioner/ plaintiff Kshetra Samrakshna Samithi seeking declaration of its title over the plaint schedule property, by declaring assignment deed No.300 of 1985 and correction deed No.1528 of 1991 as null and void; recovery of possession of the plaint schedule property from the defendants; and also a permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property or alienating the same to third parties. Along with the suit, the plaintiff filed I.A.No.1215 of 2016, an application under Order XXXIX, Rule 1 of Code of Civil Procedure, 1908 seeking a temporary injunction restraining the defendants and their men from trespassing into the plaint schedule property or alienating the same, pending disposal of the suit. In the said O.P(C) No.2920 of 2017 3 interlocutory application, the trial court passed an ad interim injunction on 22.03.2017. The said interlocutory application ended in dismissal by Ext.P3 order dated 22.05.2017. 6. From the materials on record, the trial court found that there is no documentary evidence to show that the pond (water tank) is part and parcel of the temple. Further, the recitals of Ext.B1 assignment deed No.300 of 1985 dated 18.02.1985 would show that, as per the order of the Sub Court, Vatakara dated 07.04.1983 in I.A.No.184 of 1982 in O.S.No.112 of 1979 the plaint schedule property in the present suit, which is the 10[th] item of property in the Ext.B16 report submitted by the Receiver in I.A.No.184 of 1982, is assigned to the defendants by the Receiver appointed by that court, and the sale is also ratified by that court. 7. Later, Ext.B2 correction deed No.1528 of 1991 was also executed correcting the re-survey number mistakenly entered in Ext.B1. The recitals of Ext.B2 would show that the said correction deed is also executed with the permission of that court, as per the Report No.4/90 submitted by the Receiver. O.S.No.112 of 1979 O.P(C) No.2920 of 2017 4 was a suit for partition of the property of Purameri Kovilakam, in which Receiver was appointed for the administration of the property and for partition. Ext.B13 judgment of the Sub Court, Vatakara in O.S.No.152 of 1994 would show that, the plaint schedule property with a water tank which originally belonged to Purameri Kovilakam Elamasthanam is assigned to the plaintiffs in that suit, who are the respondents/defendants in this case, as per assignment deed No.300 of 1985 dated 18.02.1985. 8. The said suit, i.e., O.S.No.152 of 1994, was one filed by the respondents/defendants in this case, against one Gopala Kurup and others for permanent prohibitory injunction and for damages in respect of the aforesaid property. Ext.B15 is the report submitted by the Receiver in I.A.No.184 of 1982 in O.S.No.112 of 1979, which would show that Receiver sold the said property inviting sealed tenders by public advertisement and the parties to that suit were also allowed to participate in the auction and that, upset price was fixed based on the valuation given by the Receiver. The Receiver filed Ext.B16 report for ratification of sale of 5 O.P(C) No.2920 of 2017 immovable properties, in which the 10[th] item of property is assigned to the plaintiffs in that suit, who are respondents/defendants in this case. The assignment in their favour is ratified by the said court by its order dated 01.11.1985. 9. As discernible from Paragraph.12 of Ext.P3 order, during the course of arguments the learned counsel for the plaintiff limited the prayer for injunction sought for in I.A.No.1215 of 2016 as one restraining the defendants from alienating the plaint schedule property. From the materials on record, the trial court found that there is nothing on record to show that the pond (water tank) is part and parcel of the temple. Further, as borne out from records, the plaint schedule property is assigned to the defendants through the process of court and as such, the defendants cannot be restrained from alienation. The trial court in Ext.P3 order found that the petitioner/plaintiff failed to make out a prima facie case and that, the balance of convenience and irreparable injury are also not in their favour. 10. Ext.P3 order was under challenge in C.M.A.No.3 of 2017 O.P(C) No.2920 of 2017 6 filed before the Sub Court, Vatakara. Along with the said appeal, the petitioner/plaintiff filed I.A.No.367 of 2017 seeking an order to stay the operation of Ext.P3 order of the trial court I.A.No.1215 of 2016 and also an order restraining the respondents/defendants from alienating the plaint schedule property to third parties, till disposal of that appeal. During the pendency of that appeal, the petitioner/plaintiff approached this Court in O.P.(C)No.2442 of 2017 seeking various reliefs and the said original petition was disposed of by Ext.P7 judgment, whereby by this Court directed the lower appellate court to consider I.A.No.367 of 2017 in C.M.A.No.3 of 2017 within a period of one month from the date of production of a copy of that judgment. This Court has also granted an order of injunction against respondents/defendants from alienating the property involved in the dispute until disposal of I.A.No.367 of 2017. 11. After Ext.P7 judgment, the lower appellate court finally heard the C.M.A. and dismissed the same by Ext.P8 judgment. After considering the rival contentions, the lower appellate court O.P(C) No.2920 of 2017 7 found that, the plaintiff got right over the temple and 22 cents of land appurtenant thereto, by virtue of Ext.A2 document No.1067 of 2002. There is nothing in Ext.A2 to show that the property transferred by the said document includes the pond. The lower appellate court has also noticed that, nothing has been stated in the affidavit in support of I.A.No.1215/2016 as to how the pond has become part and parcel of the temple. Nothing has been stated in the said affidavit as to how the plaintiff got title over the pond by virtue of that document executed in the year 2002. On the other hand, Ext.B1 is the document of the year 1985, executed by the Receivers appointed by the court in O.S.No.112 of 1979, in favour of the defendants. 12. The lower appellate court found that, the documents already on record would show that ever since the transfer under Ext.B1 assignment deed No.300 of 1985, the defendants are in possession of the property, and the plaintiff came into possession and management of the temple only in the year 2002, much after Ext.B1 deed, which is a deed approved and ratified by the court in O.P(C) No.2920 of 2017 8 the proceedings in O.S.No.112 of 1979, which was a suit for partition of the property of Purameri Kovilakam. The plaintiff cannot acquire any property other than that was transferred by Ext.A2 deed and it cannot have a claim different and distinct from that of Koumudi Thampuratti, the expectant in Ext.A2 deed. 13. After considering the materials on record, the lower appellate court arrived at a conclusion that, the defendants are in possession of the plaint schedule property, which is a pond originally belonged to Purameri Kovilakam, by way of a sale conducted by the Receivers in O.S.No.112 of 1979, and they are in possession of the said property ever since 1985. Therefore, an order of injunction, even if it is limited to the right of transfer of plaint schedule property, will no doubt cause irreparable loss and hardship to the defendants. Since there is nothing to show, prima facie, that the plaintiff has got any right over the pond and it is shown that the defendants are in settled possession over the plaint schedule property, the aspect of irreparable loss and hardship and also the balance of convenience is not in favour of the plaintiff. O.P(C) No.2920 of 2017 9 Accordingly, the lower appellate court, by Ext.P8 judgment dismissed C.M.A.No.3 of 2017. 14. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 15. In **Sobhana Nair K.N. v. Shaji S.G.Nair (2016 (1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this O.P(C) No.2920 of 2017 10 Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 16. Viewed in the light of the law laid down in the decisions referred to above, the reasoning of the courts below in Ext.P3 order and Ext.P8 judgment cannot be termed as palpably perverse or patently unreasonable or in direct conflict with settled principle of law, warranting an interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 17. In the result, the challenge made in this original petition against Ext.P3 order and Ext.P8 judgment of the courts below fails. 18. It is made clear that the observations on the merits of O.P(C) No.2920 of 2017 11 the case, contained in this judgment and also in Ext.P3 order and Ext.P8 judgment of the courts below, are made for the limited purpose of disposal of I.A.No.1215/2016 in O.S.No.219 of 2016 and for deciding the validity of Ext.P3 order and Ext.P8 judgment of the courts below. Therefore, the final disposal of O.S.No.219 of 2016 shall be untrammelled by any such observations contained in this judgment and also in Ext.P3 order and Ext.P8 judgment of the courts below. 19. Now what remains in this original petition is the question as to whether the petitioner/plaintiff is entitled for an order directing the Munsiff’s Court, Nadapuram to hear and dispose of O.S.No.219 of 2016 within a time frame to be fixed by this Court. 20. The suit is of the year 2016. In this original petition, the petitioner/plaintiff has no case that the pre-trial steps are complete in O.S.No.219 of 2016 and the suit is ripe for trial. In such circumstances, the only relief that can be granted in this original petition is an order directing the trial court to finally dispose of the suit within a time limit to be fixed in this judgment, from the date O.P(C) No.2920 of 2017 12 ## of completion of pre-trial steps. In the result, though the challenge made against Ext.P3 order and Ext.P8 judgment of the courts below stands repelled, this original petition is disposed of directing the Munsiff’s Court, Nadapuram to finally dispose of O.S.No.219 of 2016, as expeditiously as possible, at any rate, within a period of six months from the date of completion of pre-trial steps. Sd/- **ANIL K. NARENDRAN, JUDGE** vgd