O.P.(C) No.655 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943 OP(C) NO. 655 OF 2021** **OS 1/2019 OF MUNSIFF MAGISTRATE COURT, DEVIKULAM** ## **PETITIONER/S:** 1 MUNIYAMMA AGED 57 YEARS W/O. LATE MEENAYYA, RESIDING IN THE ADDRESS YELLAPPATTA ESTATE, VGP 7/140, KOVILLOOR KARA, VATTAVADA VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT-685 615 2 INDIRA, AGED 32 YEARS D/O. MUNIYAMMA, RESIDING IN THE ADDRESS YELLAPPATTA ESTATE, VGP 7/140, KOVILLOOR KARA, VATTAVADA VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT-685 615 3 GEETHA, AGED 30 YEARS D/O. MUNIYAMMA, RESIDING IN THE ADDRESS YELLAPPATTA ESTATE, VGP 7/140, KOVILLOOR KARA, VATTAVADA VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT-685 615 BY ADV G.SREEKUMAR (CHELUR) 1 YESUDAS @ BABU AGED 52, S/O. VEERABHADRAN, WRONGLY SHOWN AS THE ADDRESS RESIDING AT KOVILLOOR BHAGAM, VATTAVADA VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, CORRECT ADDRESS BEING KUNDALE ESTATE, YELLAPPETTI P.O, MUNNAR VALLEY, KERALA-685 615 ## **RESPONDENT/S:** O.P.(C) No.655 of 2021 -2- 2 SASI, AGED 47, S/O. YESUDAS @ BABU, WRONGLY SHOWN AS THE ADDRESS RESIDING AT KOVILLOR BHAGAM, VATTAVADA VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, CORRECT ADDRESS BEING KUNDALE ESTATE, YELLAPPETTI P.O, MUNNAR VALLEY, KERALA-685 615 BY ADV SRI.LATHEESH SEBASTIAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.10.2021, THE COURT ON 20.01.2022 THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C) No.655 of 2021 -3- ## **JUDGMENT** Dated this the 20[th] day of January , 2022 **The petitioners are the defendants in O.S.No.1 of 2019 on the files of the Munsiff's Court, Devikulam. The respondents have filed the suit, seeking partition and separate possession of their share in the plaint schedule properties on the basis of a family settlement executed between them and their brother Meenayya, late husband of the first petitioner and father of petitioners 2 and 3. As per the plaint averments, the brothers had been doing joint business and had purchased immovable properties utilising the income from the business. The properties were purchased in the name of Meenayya, he being the eldest brother on whom the younger brothers had** O.P.(C) No.655 of 2021 -4- **absolute trust. Plaint A to G schedule are the properties thus purchased. Plaint B schedule property is in the exclusive possession of the second respondent, wherein a lodge by name Martha Lodge was being conducted. While so, Meenayya died on 28.10.2015. Prior to his death, the family Settlement Deed had been executed on 19.10.2013, whereby the properties were to be shared equally between the plaintiffs, Meenayya and the first defendant. Based on the family settlement, the respondents and first defendant entered into a licence agreement with one Sanil Kumar K.G, for the conduct of business of Matha lodge, situated in C schedule property. As Sanil Kumar failed to abide by the terms of the agreement he was ousted and the 2[nd] petitioner took over the conduct of the lodge. The defendants attempted to alienate the plaint** O.P.(C) No.655 of 2021 -5- **schedule properties and refused to accede to the request of the plaintiffs for their 2/3[rd] share in the properties. Hence, the suit.** **2. Pending the suit, the second petitioner filed W.P.(C) No. 3761 of 2020 before this Court challenging the proceeding by which the Secretary Vattavada Grama Panchayat closed down the Matha Lodge on 22.1.2020 and took away the keys of the lodge, alleging non-renewal of licence for the year 2019-20. In W.P.(C) No.3761 of 2020, the** ## **following reliefs were sought;** _**“i. Call for the records leading to Ext.P3 from the respondents 1 and 2.**_ _**ii. Quash Ext.P3 order of the 2[nd] respondent by a writ of certiorari or any other writ, direction or order;**_ _**iii. Issue a writ of mandamus or any other writ or direction or order to the respondents 1 and 2 to return the possession and handover key of the premises viz; Matha Lodge situated at Ward No.7 of Vattavada Grama Panchayat with room Nos.194, 195, 196, 197, 198, 199 and 200 to the petitioner as expeditiously as possible or within a time limit as fixed by this Hon'ble Court.**_ O.P.(C) No.655 of 2021 -6- _**iv. Declare that the respondents 1 and 2 are not entitled to insist for license under the Kerala Panchayat Raj (Issue of License to Factories, Trades, Entrepreneurship Activities and other Services) Rules, 1996 for conducting lodging business, viz. Matha Lodge situated at Ward No.7 of Vattavada Grama Panchayat with room Nos.194, 195, 196, 197, 198, 199 and 200 of Vattavada Grama Panchayat.”**_ **3. By way of an interim order, this Court** **directed the Panchayat Secretary to hand over the keys of the lodge to the second petitioner. While disposing the writ petition under Ext.P2 judgment,this Court vacated that order and directed the writ petitioner to hand over the keys to the Sheristadar/Ministerial Officer of the Munsiff's Court, Devikulam and gave writ petitioner the liberty to file appropriate interim application in the suit for getting the keys of the lodge. The Munsiff was directed to consider that plea and pass orders on the** O.P.(C) No.655 of 2021 -7- **application on or before 31.03.2020. Accordingly, the second respondent filed I.A. No.2 of 2020 in the suit, seeking entrustment of the keys.** **4. The prayer was stoutly opposed by the petitioners. It was contended that no property was purchased by Meenayya for and on behalf of the respondents. The second respondent's claim of exclusive possession over plaint B schedule property was denied and it was submitted that B schedule was purchased in the name of Sankar, son of Meenayya and the first petitioner. Further, the family settlement, based on which the respondents are claiming right, is a forged document and first petitioner has initiated criminal proceedings against the respondents by getting Crime No. 7 of 2009 registered at the Devikulam Police Station for the offences under Sections 420, 465, 471 and 34 of IPC. It was** O.P.(C) No.655 of 2021 -8- **contended that the agreement with Sanil Kumar for conducting the Lodge was executed at the instance of the respondents. In that agreement, the respondents clandestinely incorporated recitals to the effect that the respondents are also having right over the property. Later, they threw out Sanil Kumar and forcibly took over possession. Hence, the respondents, who have no right over the lodge building, cannot be entrusted with the keys of the lodge.** **5. By Ext.P7 order, the learned Munsiff directed to hand over the key to the applicants on their undertaking that the keys will be produced as and when ordered. It was made clear that the operation of the Matha Lodge will be subject to the compliance of the legal formalities and Ext.P7 order is issued for the limited purpose of entrustment of the key,** O.P.(C) No.655 of 2021 -9- **subject to the final outcome of the suit. The defendants in the suit have filed this original petition aggrieved by Ext.P7 order.** **6. Heard Adv.Sreekumar Chelur, learned Counsel for the petitioners and Sri.Latheesh Sebastian, learned Counsel for respondents 1 and 2.** **7. Learned Counsel for the petitioner contended that, other than extracting the contentions of the parties and referring to the exhibits, there was no independent consideration or application of mind by the learned Munsiff. The petitioners are admittedly title holders of the property. The Settlement Deed relied on by the respondents is a forged document and criminal proceedings have been initiated against the respondents for the forgery. At the instance of the respondents, licence for conducting the lodge** O.P.(C) No.655 of 2021 -10- **was given to a third person for a short period of time. In that lease deed, respondents had made certain recitals to make it appear that they are also having right over the property. Later, respondents 1 and 2 took over possession of Matha Lodge forcefully. It is settled law that a trespasser cannot claim the relief of injunction against the true owner. Being so, the trial court could not have passed an order directing keys of the building owned by the petitioners to be handed over to the respondents. Reliance is placed on the decision of the Apex Court in** _**Premji Ratansey Shah and others v. Union of India and others [(1994) 5 SCC 547]**_ **in support of the contention that no injunction can be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner.** **8. Learned Counsel for respondents 1 and 2** O.P.(C) No.655 of 2021 -11- **submitted that this Court had considered all aspects in the earlier round of litigation and had passed Ext.P2 judgment, permitting the petitioner to submit an application seeking entrustment of the keys of the lodge. From the judgment it is clear that this Court was convinced about the petitioners' right over the property. Moreover, even respondents have admitted the petitioners' possession over the property, as revealed from paragraph 8 of Ext.P6. The impugned order was passed on the trial court being convinced about the lawful possession of the respondents. As such, no interference is warranted in exercise of the supervisory power under Article 227 of the Constitution of India.** **9. I find substantial force in the contention that the impugned order does not reflect either consideration of the contentions** O.P.(C) No.655 of 2021 -12- **in detail or proper application of mind. A perusal of the order shows that the learned Munsiff has extracted the contentions put forth and referred to the documents relied on by the parties** _**in extenso**_ **. The consideration reflected in an omnibus statement that a perusal of plaint averments would show that the petitioner is having a contestable case in his favour and from the available records it is clear that the petitioner has made out a** _**prima facie**_ **case of possession, which is admitted by the respondents. As far as the alleged admission of the respondents' possession by the petitioners, one will have to look at paragraph 8 of Ext.P6 objection filed to I.A.No.2 of 2020, the relevant portion of which reads as under;** _**“8.....It is true that the petitioners joined with the first respondent as licensors when a portion of the lodge building situated**_ O.P.(C) No.655 of 2021 -13- _**in the B and C schedule properties was licenced to one Sanil Kumar. The petitioners represented to the first respondent that it would be easier to eject the licence if they are joined parties with her.**_ _**The first respondent who does not know Malayalam, was cheated by the petitioners by stating in the licence agreement that they also had joint right upon the property. The petitioners, thereafter forced the said SanilKumar out of the building in August 2018 and thereafter wrongfully and forcibly occupying the lodge by them. By fraudulent acts of joining the licence agreement and forcibly obtaining wrongful occupation of the lodge building the petitioners would not acquire any legal right thereon. The respondents are entitled to get the respondents evicted from the first and second floor of the lodge building situated in the B and C schedule properties under due process of law.”**_ **Therefore, it is evident that the specific case put forth by the petitioners is that the respondents are forcibly occupying the lodge. It is pleaded that, by making false recitals in the licence agreement and forcibly obtaining possession of the building, respondents would not acquire any legal right thereon. Unfortunately, the trial court has held that the manner in which** O.P.(C) No.655 of 2021 -14- **the second respondent obtained possession and his right to perfect the same are matters to be adjudicated after fullfledged trial. I am unable to subscribe to the said finding. As held in** _**Premji Ratansey Shah,**_ **no injunction can be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner. Here the trial court was called upon to decide the question as to whom the keys of the lodge are to be entrusted. Being so, the trial court ought to have decided the question whether the possession claimed by the respondents is lawful, before ordering the keys to be handed over. No such exercise having been undertaken by the trial court, I am compelled to set aside the impugned order and direct the trial court to decide the interlocutory application afresh and pass a reasoned order thereon.** O.P.(C) No.655 of 2021 -15- **In the result, the original petition is allowed, the impugned order is set aside and the trial court is directed to consider I.A.No.2 of 2020 in O.S.No.1 of 2019 afresh, after affording an opportunity of hearing to the parties and to pass a reasoned order thereon, within two months of receipt of a copy of this judgment.** Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.655 of 2021 -16- ## **APPENDIX OF OP(C) 655/2021** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|A TRUE COPY OF THE PLAINT IN OS NO. 1| ||OF 19 ON THE FILE OF THE MUNSIFF| ||COURT, DEVIKULAM FILED ORIGINALLY| ||DATED 24.12.2018.| |EXHIBIT P2|A TRUE COPY OF THE JUDGMENT DELIVERED| ||IN W.P.C NO. 3761 OF 20 DATED| ||24.2.2020 BY THIS HON'BLE COURT.| |EXHIBIT P3|A TRUE COPY OF THE JUDGMENT DELIVERED| ||IN WA NO. 456 OF 20 DATED 6.3.2020 BY| ||THIS HON'BLE COURT.| |EXHIBIT P4|A TRUE COPY OF THE COUNTER AFFIDAVIT| ||SUBMITTED BY THE FOURTH RESPONDENT IN| ||W.P.C NO. 3761 OF 20 DATED 15.2.2020.| |EXHIBIT P5|A TRUE COPY OF THE IA NO. 2 OF 2020 IN| ||OS NO. 1 OF 19 DATED 12.3.2020.| |EXHIBIT P6|A TRUE COPY OF THE OBJECTION TO THE| ||INJUCTION APPLICATION FILED BY THE| ||PETITIONERS HEREIN DATED 17.3.2020.| |EXHIBIT P7|A TRUE COPY OF THE ORDER PASSED BY THE| ||LEARNED MUNSIFF, DEVIKULAM IN IA NO. 2| ||OF 20 IN OS NO. 1 OF 19 DATED 17.2.21.| |RESPONDENT EXHIBITS|| |EXHIBIT R2(C)|TRUE COPY OF THE OBJECTION FILED BY| ||THE PETITIONERS IN IA NO 454/2019 IN| ||IA NO 41/2019 IN OS NO 1/2019 DATED| ||10.4.2019| |EXHIBIT R2(D)|TRUE COPY OF THE OBJECTION FILED BY| ||THE PETITOINERS TO EXT.P5 PETITION ON| ||9.2.2021| |EXHIBIT R2(E)|TRUE COPY OF THE LICENCE AGREEMENT| ||DATED 3.7.2018 EXECUTED BETWEEN THE| ||RESPONDENTS AND THE 1ST PETITIONER| ||ALONG WITH ONE SANILKUMAR K.G| |EXHIBIT R2(F)|TRUE COPY OF THE POLICE CLEARANCE| ||CERTIFICATE FROM THE SUB INSPECTOR OF| ||POLICE, DEVIKULAM DATED 21.4.2018| |EXHIBIT R2(G)|TRUE COPY OF THE PROPERTY TAX RECEIPT| -17- ## O.P.(C) No.655 of 2021 DATED 10.7.2017 ISSUED BY VATTAVADA GRAMA PANCHAYAT EXHIBIT R2(G)A EXHIBIT R2(H) TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 14.7.2017 ISSUED BY VATTAVADA GRAMA PANCHAYAT TRUE COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFICER, VATTAVADA DATED 19.9.2018 EXHIBIT R2(I) TRUE COPY OF THE REMITTANCE OF THE ELECTRICITY BILL IN THE MONTH OF 10.11.2019 EXHIBIT R2(J) TRUE COPY OF THE REMITTANCE OF THE ELECTRICITY BILL IN THE MONTH OF 8.1.2020 EXHIBIT R2(K) EXHIBIT R2(L) EXHIBIT R2(M) EXHIBIT R2(N) TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF TELEPHONE BILL OF THE LODGE DATED 13.11.2019 TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF TELEPHONE BILL OF THE LODGE DATED 12.2.2020 TRUE COPY OF THE TELEPHONE BILL FOR THE MONTH OF FEBRUARY 2020 TRUE COPY OF THE RECEIPT DATED 1.6.2019 ISSUED BY THE HUSTER CLUB, KOVILOOR, VATTAVADA IN THE NAME OF THE 1ST RESPONDENT