P.K. Chandran v. Rajeswary and Joshy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 M.F.A. (MT) NO. 28 OF 2017 AGAINST THE ORDER DATED 10.01.2017 IN I.A. NO.255/2016 IN MTOP NO.40/2016 OF MUNNAR SPECIAL TRIBUNAL, IDUKKI APPELLANT/S:** **P.K. CHANDRAN AGED 66 YEARS, S/O KUNJUKUNJU, PARAMBETTU, RAJAKUMARY KARA, RAJAKUMARY VILLAGE, UDUMBANCHOLA TALUK** **BY ADVS. SRI.C.K.PAVITHRAN SMT.NEENU PAVITHRAN** ## **RESPONDENT/S:** |**1**|**RAJESWARY**| |---|---| ||**AGED ABOUT 65 YEARS, W/O R. KRISHNAMOORTHY,**| ||**KANALMUGAPPU KARA, SANTHANPARA VILLAGE, UDUMBANCHOLA**| ||**TALUK**| |**2**|**JOSHY**| ||**AGED ABOUT 44 YEARS, S/O ABRAHAM, NJAVALLIL,**| ||**KANJIRAPPALLY KARA, KANJIRAPPALLY VILLAGE,**| ||**KANJIRAPPALLY TALUK**| **BY ADVS. SRI.N.RAGHURAJ (CAVEATER) SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE** **THIS MFA (MUNNAR TRIBUNAL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A. (MT) NO.28 OF 2017 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant originally filed O.S.No.109 of 2016 before the Munsiff Court, Devikulam against the respondents, seeking a decree for specific performance of an agreement dated 15.07.1987, in respect of the property having an extent of 1.17 Acres in Survey No.36/1 of Santhanpara Village and for a consequential injunction. On the constitution of the Munnar Special Tribunal under Section 4 of the Munnar Special Tribunal Act, 2010, that suit was transferred to the Tribunal and numbered as MTOP No.40 of 2016. In that original petition, the appellant-applicant filed I.A.No.255 of 2016, seeking temporary injunction restraining the respondents or persons under them from trespassing into the petition schedule property, committing any waste or mischief therein, ousting or dispossessing the applicant therefrom or alienating the petition schedule property to third parties, inducting third parties there into or doing any act which will meddle with the peaceful possession and enjoyment of the petition schedule property by the applicant. In that application filed under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908, the Tribunal granted an ad interim injunction. The respondents entered appearance and filed separate M.F.A. (MT) NO.28 OF 2017 3 counter affidavit raising various contentions. They have also raised a contention that the original application is barred by limitation. Before the Tribunal Exts.A1 to A5 were marked on the side of the applicants and Exts.R1(a) to R1(d) were marked on the side of the 1[st] respondent. The report dated 17.06.2016 of the Advocate Commissioner was marked as Ext.C1. After considering the rival contentions the Tribunal vacated the ad interim injunction granted in favour of the applicants and accordingly dismissed I.A.No.255 of 2016 in MTOP No.40 of 2016. 2. Feeling aggrieved by the above order of the Tribunal, the appellant-applicant has filed this M.F.A.(MT) under Section 9 of the Act. This appeal was filed along with C.M.Appl.No.1120 of 2017, seeking an order to condone the delay of six days in filing this appeal. 3. On 07.04.2017, when C.M.Appl.No.1120 of 2017 came up for consideration, the 2nd respondent entered appearance through counsel and this Court issued urgent notice by speed post to the 1st respondent. 4. On 11.10.2017, this Court noticed that the appellant had not paid process to serve notice on the 1st respondent, despite the order dated 07.04.2017. This Court granted two weeks time to M.F.A. (MT) NO.28 OF 2017 4 cure the defect, failing which the appeal will stand dismissed for default. On 29.07.2021, this Court condoned the delay of six days in filing this appeal. 5. Heard the learned counsel for the appellant, the learned counsel for the 1st respondent and also the learned counsel for the 2nd respondent. 6. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order of the Munnar Special Tribunal dated 10.01.2017, whereby the Tribunal vacated the order of ad interim injunction granted in I.A. No.255 of 2016 in MTOP No.40 of 2016 and dismissed that interlocutory application filed under Order XXXIX Rule 1 of the Code of Civil Procedure. 7. The reasoning of the Tribunal, as contained in page Nos. 5 and 6 of the impugned order dated 10.01.2017 reads thus; “The claim of the petitioner is that he had executed Ext.A1 agreement for sale and Ext.A2 supplemental agreement with the husband of the 1st respondent, for the purchase of petition schedule property. He was handed over Ext.A3 pattayam and Ext.A4 series of tax receipts and he was put in possession of the property. The 1st respondent claims that she is the legal heir of the deceased husband who is the original pattadar of the schedule property and after his death M.F.A. (MT) NO.28 OF 2017 5 she has paid land tax for the period from 1999 to 2009. She had sold the property to the 2nd respondent as per Ext.A5 sale deed and thereafter he is in possession and enjoyment of the property. The 2nd respondent claims that he had purchased the petition schedule property of 1.14 Acres of land as per the Ext.A5 sale deed by paying valid consideration of Rs.1.71 lakhs and thereafter he is in possession and enjoyment of the property. The mutation of the property was effected in the name of the 2nd respondent by paying the fees as evidenced by Ext.R2(b) receipt and thereafter he is paying land tax for the property as evidenced by Exts.R2(a), R2(c) and R2(d). According to the petitioner he had executed the agreement for sale in 1987 and the sale deed is not executed by the 1st respondent in spite of his request on 11.03.2009. Petitioner is claiming possession of the property and benefits under Section 53A of the Transfer of Property Act. The Hon'ble Supreme Court of India in Nanjegowda and another V.Gangamma and others [2011 KHC 4736:(2011) 13 SCC 232] held that to claim the benefit under Section 53A, it has to be proved that (i) there was a written contract, signed by or on behalf of the transferer; (ii) the transferee has got possession of the property covered by the contract; (iii) the transferee has done some act in furtherance of the contract; and (iv) the transferee has either performed his part of the contract or is willing to perform his part of the contract. A party can take advantage of this provision only when he satisfies all the conditions aforesaid. All the postulates are sine quo non and a party cannot derive benefit by fulfilling one or more conditions. Ext.C1 Commission report submitted at the instance of the petitioner M.F.A. (MT) NO.28 OF 2017 6 is that the schedule property is a barren land without any cultivation. Hence the 3rd condition in furtherance of the contract is not satisfied and hence the petitioner is not entitled to claim the benefits of Section 53A. The agreement is executed in 1987 and the demand for execution of sale deed is made in 2009 even though it is denied by the 1 st respondent. The pattadar, Krishnamoorthy died on 28.09.1995 as evidenced by Ext.R1(a) death certificate; but the petitioner is not even aware of the death of the pattadar who was residing near the schedule property and he asserts that the pattadar died in 2008. The petitioner has not offered any explanation for not initiating any action for specific performance of the agreement for sale for about 29 years till the petition. Petitioner is not even aware of the death of the pattadar for about 20 years, even though he is residing near the property. The pleadings and evidence of the petitioner are not sufficient to hold that possession of property is with the petitioner. The 2nd respondent purchased the property as per the Ext.A5 sale deed, effected mutated of the property in the name of 2nd respondent as per Ext.R2(b) receipt and paying land tax in his name as evidenced by Exts.R2(a), R2(c) and R2(d) receipts. The registered sale deed, payment for mutation and the Land Tax receipts and the contentions of the legal heir of the deceased pattadar show that the 2nd respondent is in possession of the property. Hence the exparte temporary injunction granted in favour of the petitioner is to be vacated.” 8. The learned counsel for the appellant would contend that various findings of the Tribunal in the impugned order dated M.F.A. (MT) NO.28 OF 2017 7 10.01.2017 are legally unsustainable and that the Tribunal relied on Ext.C1 report of the Advocate Commissioner even without affording the appellant an opportunity to file his objections. Per contra, the learned counsel for the 1[st] respondent and also the learned counsel for the 2[nd] respondent would contend that in the impugned order dated 10.01.2017, the Tribunal has stated valid reasons to vacate the ad interim injunction granted in I.A. No.255 of 2016 and also to dismiss that interlocutory application. The learned counsel for the 2[nd] respondent would point out that Ext.C1 report of the Advocate Commissioner is one dated 17.02.2016 and the appellant had ample time to file objections, if any, to that report, since the Tribunal heard the matter only on 10.01.2017. 9. In the impugned order dated 01.07.2017 the Tribunal has stated reasons for vacating the ad interim injunction granted in I.A. No.255 of 2016 in MTOP No.40 of 2016. In such an application filed under Order XXXIX Rule 1 of the Code of Civil Procedure, seeking temporary injunction, a court or Tribunal has to record its findings, which is always considered prima facie in nature and is confined to the disposal of such an interlocutory application. In the impugned order, after considering the legal and factual contentions raised by both parties, the Tribunal arrived at a prima facie finding M.F.A. (MT) NO.28 OF 2017 8 that the pleadings and materials on record are not sufficient to hold that possession of the petition schedule property is with the appellant and the documents on record show that the 2[nd] respondent is in possession of that property. In arriving such prima facie conclusion the Tribunal has also relied on Ext.C1 report of the Advocate Commissioner, which is one obtained at the instance of the appellant, wherein it is sated that the petition schedule property is a barren land without any cultivation. The findings of the Tribunal in the impugned order dated 10.01.2017, while vacating the ad interim injunction and dismissing I.A.No.255 of 2016, is only prima facie in nature, which is confined to the disposal of that interlocutory application. The reasoning of the Tribunal in the said order, for arriving at such a prima facie conclusion for the limited purpose of disposal of an interlocutory application filed under Order XXXIX Rule 1 of the Code of Civil Procedure, cannot be said to be perverse or patently illegal warranting an interference in this appeal under Section 9 of the Munnar Special Tribunal Act, 2010, especially when, as per the proviso to sub-section (1) of Section 9 of the Act, the High Court shall entertain such appeal under sub-section (1) only if there is substantial question of law involved and shall not entertain an M.F.A. (MT) NO.28 OF 2017 9 appeal based on factual aspects alone. 10. In **Akriti Land Con Pvt. Ltd. v. Krishna Bhargava [(2017) 13 SCC 212],** the Apex Court held that the findings recorded by considering grant of injunction is always considered prima facie in nature and is confined to the disposal of such interlocutory proceedings. They do not influence the decision which is eventually rendered in the suit on merits as the same is rendered on the basis of evidence which is adduced in the suit. 11. In the above circumstances, we find no grounds to interfere with the impugned order dated 10.01.2017 of the Munnar Special Tribunal in I.A. No.255 of 2016 in MTOP No.40 of 2016. 12. During the course of arguments, it is brought to the notice of this Court by the learned counsel on both sides that after the abolition of the Munnar Special Tribunal, the matter is retransferred to the Munsiff Court, Devikulam, wherein it has already been renumbered as O.S.No.618 of 2019. In the said suit pleadings are already completed. In such circumstances, though interference is declined on the impugned order dated 10.01.2017 of the Munnar Special Tribunal in I.A. No.255 of 2016 in MTOP No.40 of 2016, this appeal is disposed of by directing the Munsiff Court, Devikulam to finally M.F.A. (MT) NO.28 OF 2017 10 dispose of O.S. No.618 of 2019, which was originally filed before that court as O.S. No.109 of 2016, untrammeled by the prima facie findings of the Munnar Special Tribunal in the impugned order dated 10.01.2017. In case any application is made by the appellant herein, who is the plaintiff in that suit, for an early disposal of O.S. No.618 of 2019, the Munsiff Court, Devikulam, shall consider the same and take an appropriate decision thereon, since the suit is one originally filed before that court in the year 2016. **Sd/-** **ANIL K. NARENDRAN** **Judge** **Sd/M.R. ANITHA Judge** MIN