P.V. Sasidharan and Rugmini Amma and Sarojini Amma (Petitioners) v. Nhandati Sree Kariyathan Kavu Paripalana Committee and others (Respondents)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933 ## **WP(C).No. 24070 of 2010 (O)** CMA.17/2009 OF I ADDL.DISTRICT COURT, KOZHIKODE ## **PETITIONERS:** 1. P.V.SASIDHARAN, PUTHIYEDATH PADINJARE VEETTIL, (NOW RESIDING AT) CHARATTU HOUSE, P.O.THENJIPALAM MALAPPURAM DISTRICT-673636. 2. RUGMINI AMMA, PUTHEYIEDATH PADINJARE VEETTIL, OLAVANNA VILLAGE IRINGALLUR DESOM, KOZHIKODE TALUK-673 636. 3. SAROJINI AMMA, DO. DO. BY ADVS.SRI.G.UNNIKRISHNAN SRI.K.SANEESH KUMAR ## **RESPONDENTS:** 1. NHANDATI SREE KARIYATHAN KAVU PARIPALANA COMMITTEE, IRINGALLUR AMSOM AND DESOM P.O.GURUVAYURAPPAN COLLEGE, KOZHIKODE-673 014 REP. BY ITS GENERAL SECRETARY, THOTTATHIL MOHANAN. 2. THANKAMANI, PUTHIYEDATH PADINJARE VEETIL OLAVANNA VILLAGE, IRINGALLUR DESOM, OLAVANNA P.O. KOZHIKODE TALUK-673 636. 3. RAMANI, DO. DO. 4. BHARATHAN, DO. DO. 5. SURESHAN, DO. DO. 6. SATHI, DO. DO. 7. MURALEEDHARAN, DO. DO. R1 BY ADV. SRI.V.V.SURENDRAN ADV. SRI.P.A.HARISH ADV. SMT.RESMI NARENDRAN R2 TO R6 BY ADV. SMT.K.AMBILY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------W.P.(C) NO. 24070 OF 2010 -----------------------------------------------------Dated this the 9[th] day of January, 2012** ## **JUDGMENT** Defendants 2, 4 and 5 in O.S.No.492 of 2008 on the file of the Court of the Additional Munsiff II, Kozhikode, against whom the trial court as well as the lower Appellate Court granted temporary injunction restraining them from taking the usufructus from the plaint schedule property, filed this Writ Petition challenging the interlocutory order passed by the trial court and the judgment passed by the lower Appellate Court confirming the same. 2. The plaintiff is a registered society under the Societies Registration Act. According to the plaintiff, the plaint schedule property, having an extent of 40 cents, was gifted in the year 1965 by Padmavathi Amma of Puthiyedath Tharwad, on her behalf and on behalf of her minor children, in favour of Govinda Kurup of the said Tharwad, who was the Manager of Kaimangalam temple. Govinda Kurup handed over possession of the property to a committee which was in management of the temple. The committee was W.P.(C) NO.24070 OF 2010 :: 2 :: subsequently registered under the Societies Registration Act. The plaintiff contended that the plaintiff is in management and possession of the temple as well as the plaint schedule property. The income from the plaint schedule property is being taken for the purpose of the temple. 3. The suit was filed for a permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property or from taking income from the said property. The plaintiffs filed I.A.No.2353 of 2008 praying for the issue of a temporary injunction restraining the defendants from entering into the plaint schedule property or from taking income from the kuzhikoors. 4. The contesting defendants contended that Padmavathi Amma did not execute any gift deed in 1965 as alleged by the plaintiff. She did not sign any such document nor did she register the same. It was also contended that Padmavathi Amma had no right to execute the gift in respect of the shares belonging to her minor children. The defendants contended that the plaint schedule property along with other items were obtained by Nambaru Kurup of Puthiyedath Tharwad, as per Ext.B1 Kanam deed of the year 1928. W.P.(C) NO.24070 OF 2010 :: 3 :: Nambaru Kurup died a bachelor. His rights devolved on the Tharwad of Devutty Amma and her daughter Kuttimalu Amma. On the death of Devutty Amma, her rights devolved on Kuttimalu Amma and Padmavathi Amma. On the death of Kuttimalu Amma, Padmavathi Amma and her children, who are defendants 2 to 5, obtained the entire rights over the properties. Two of the children of Padmavathi Amma filed O.S.No.286 of 1992 on the file of the Court of the Munsiff of Kozhikode against Padmavathi Amma and her other children for partition of the properties covered by Ext.B1 Kanam deed, including the plaint schedule property. In that suit, Ext.B4 joint statement was filed, on the basis of which, Ext.B2 judgment and Ext.B3 decree were passed. As per the joint statement, 13 cents of land from item No.2 of Ext.B1 Kanam deed was set apart for the use of the temple and the rest of item No.2 was divided among the members of the family. The members of the family took possession of those properties and they paid revenue. The defendants contended that the plaintiffs have no right over the properties and that they are not entitled to any order of injunction. 5. A commissioner was appointed in the suit, who filed a report and sketch. The sketch would indicate that there are certain W.P.(C) NO.24070 OF 2010 :: 4 :: constructions in the property claimed by the plaintiff. It is also seen that even the steps leading to the temple for entering into the compound of the temple from the main road are situated in the property in dispute. There are yielding coconut trees and other fruit bearing trees in the property in dispute. The property in dispute is situated on the west, north and east of a retaining wall surrounding the temple. According to the plaintiff, the existence of retaining wall does not mean that the temple has only that much property extending upto the retaining wall, but the retaining wall is for the purpose of construction of the temple within the specified limits. According to the defendants, the retaining wall around the temple would separate the property of the temple from the property of the defendants. The learned counsel for the plaintiff pointed out that even the toilet used by the devotees of the temple is situated in the disputed property. The entry to the temple from the main road and the steps at the entry are situated in the disputed property. According to the counsel for the plaintiff, the Commissioner's report and sketch would unambiguously show that the disputed property is being possessed and enjoyed by the plaintiff for the purpose of the temple. W.P.(C) NO.24070 OF 2010 :: 5 :: 6. The trial court partly allowed the application for temporary injunction. The trial court held that since some of the defendants are members of Puthiyedath Tharwad and some of the members of Puthiyedath Tharwad being members of the temple committee, an injunction against entry into the disputed property could not be granted. However, the trial court held that the defendants should be restrained from taking the usufructus from the kuzhikoors in the plaint schedule property. The trial court found that the plaintiff has got a prima facie case that if injunction is not granted, it would cause irreparable injury to the plaintiff. The balance of convenience was also found in favour of the plaintiff. The contesting defendants filed C.M.A.No.17 of 2009 before the Court of the District Judge of Kozhikode, challenging the order passed by the trial court. The lower Appellate Court confirmed the order passed by the trial court. In this Writ Petition, defendants 2, 4 and 5 challenge the order and judgment of the courts below. 7. Learned counsel for the petitioners submitted that the courts below did not properly consider the case based on the well settled principles of law in the matter of grant of temporary injunction. The counsel submitted that the plaintiff failed to establish any prima W.P.(C) NO.24070 OF 2010 :: 6 :: facie case for trial and, therefore, the theory of balance of convenience and irreparable injury were irrelevant for consideration. It is submitted that the plaintiff failed to establish any triable case and, going by the materials on record, it could be seen that the defendants are in possession of the disputed property. Learned counsel for the petitioners relied on the decisions of the Supreme Court in **Dalpat Kumar and Another** v. **Prahlad Singh and Others** ((1992) 1 SCC 719), **Kashi Math Samsthan and Another** v. **Srimad Sudhindra Thirtha Swamy and Another** ((2010) 1 SCC 689), **Seema Arshad Zaheer and Others** v. **Municipal Corpn. of Greater Mumbai and others** (2006 (4) KLT 65 (SC)) and **P.Muthukoya** v. **M.Muthukoya** (1988(1) KLT 664). 8. In **Dalpat Kumar and Another** v. **Prahlad Singh and Others** ((1992) 1 SCC 719), it was held thus: “5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima W.P.(C) NO.24070 OF 2010 :: 7 :: facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties. If the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction W.P.(C) NO.24070 OF 2010 :: 8 :: would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 9. In **Kashi Math Samsthan and Another** v. **Srimad Sudhindra Thirtha Swamy and Another** ((2010) 1 SCC 689), the Supreme Court held thus: “13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.” W.P.(C) NO.24070 OF 2010 :: 9 :: 10. In **Seema Arshad Zaheer and Others** v. **Municipal Corpn. of Greater Mumbai and others** (2006 (4) KLT 65 (SC)), the Supreme Court held thus: “30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction. (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.” 11. In **P.Muthukoya** v. **M.Muthukoya** (1988(1) KLT 664), the Kerala High Court held thus: W.P.(C) NO.24070 OF 2010 :: 10 :: “11. How do courts decide whether there is a prima facie case or bona fide contention between the parties or a serious question to be tried? The decision involves a consideration of the respective contentions raised by the parties, affidavits and other documents relied on by the parties. In any contested suit, there is likely to be a contention between the parties or a question to be tried, except to the extent one of the parties is, by principle of estoppel precluded from raising it or unless the court is, by principle of res judicata etc. precluded from deciding it. It is not every contention which is bona fide; it is not every question which is a serious question. Where can the court draw the line? There must be some material on record in support of the claim of legal right put forward by the person who seeks interlocutory relief of injunction; such material must, either by itself or in the light of material placed before the court by the opposite party, satisfy the court that it could, at that stage and under those circumstances act on it. This is precisely what can be comprehended by the expression 'prima facie case'. We cannot forget that the question of interlocutory injunction will arise in a variety of cases; it may be to restrain defendant from proceeding with judicial proceedings, to restrain him from executing a decree, to restrain him from committing breach of contract, to restrain him from committing W.P.(C) NO.24070 OF 2010 ## :: 11 :: waste, to restrain him from committing trespass and the like. Take the case of a plaintiff who alleges that he is in possession of an item of immovable property and the defendant who has no possession is trying to oust him from possession and seeks a decree for injunction and interlocutory relief of injunction till the disposal of the suit. Defendant may deny the plaintiff's case and assert possession himself. The court has to consider whether there is a bona fide contention between the parties or a serious question to be tried. The materials placed by the parties before court have to be considered before arriving at a decision. If there is do element of probability in support of the case of the plaintiff it cannot be said that there is a bona fide contention between the parties or a serious question to be tried. Plaintiff may have some materials in support of his own claim. The court will have to consider the entire materials placed before it to see whether there is a prima facie case at that stage. Without such satisfaction an interlocutory relief cannot be granted. In our considered judgment Joshua's case has not laid down any contrary principle. Traditional principles governing the matter remain unaltered. They are that the court must be satisfied that there is a prima facie case or a serious question to be tried in the suit and that the court's interference is necessary to protect the plaintiff from irreparable injury.” W.P.(C) NO.24070 OF 2010 :: 12 :: 12. On a careful consideration of the contentions put forward by both the parties in the light of the principles laid down by the Supreme Court and the Kerala High Court as aforesaid, I am of the view that the courts below were right in holding that the plaintiff has established a prima facie case for trial. It is also established that the plaintiff would be put to irreparable injury if no injunction is granted. The balance of convenience is also in favour of the plaintiff. The courts below were careful enough in not granting an order of injunction restraining the defendants from entering into the plaint schedule property, as it was found that the defendants are members of Puthiyedath Tharwad, to whom the property originally belonged and also that some of the members of the Tharwad are members of the temple committee. At the same time, the courts below concurrently held that the defendants are to be restrained from taking usufructus from the disputed property. This finding was arrived at after considering all the relevant aspects and the pleadings and documents. It cannot be said that the view taken by the courts below is perverse or illegal or without jurisdiction. No grounds are made out for interference under Article 227 of the Constitution of India. W.P.(C) NO.24070 OF 2010 :: 13 :: For the aforesaid reasons, the Writ Petition is dismissed. It is made clear that the trial court shall dispose of the suit untrammelled by any of the observations made by the trial court, lower Appellate Court or by this Court in this order. **(K.T.SANKARAN) Judge** ahz/