T. Suprabha v. Sumam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 WP(C).No. 10610 of 2008(K) -------------------------CMA.8/2007 of SUB COURT,ATTINGAL I.A.No.2021/06 in OS.302/2006 of MUNSIFF COURT,ATTINGAL .................... PETITIONER: ------------ T. SUPRABHA, D/O.THANKAMMA CHAVADI VEEDU, AZHOOR P.O., AZHOOR DESOM CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: ------------- SUMAM, D/O.PADMAVATHy, DEVAKI BHAVAN MUTTAPPALLAM DESOM, PERUMKUZHI P.O. AZHOOR VILLAGE, CHIRAYINKIL TALUK THIRUVANANTHAPURAM BY ADV. SRI.L.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.10610/08** ## **PETITIONER'S EXTS:** - EXT.P1: COPY OF PLAINT IN O.S.No. 302/06 on the FILE OF THE MUNSIFF COURT, ATTINGAL. - EXT.P2: COPY OF OBJECTION TO INJUNCTION PETITION IN O.S.No. 302/06 on the FILE OF THE MUNSIFF COURT, ATTINGAL. - EXT.P3: COPY OF ORDER DATED 8.2.07 IN O.S.No. 302/06 ON THE FILE OF MUNSIFF COURT, ATTINGAL. - EXT.P4: COPY OF JUDGMENT DATED 28.2.08 IN CMA.8/07 OF THE SUB COURT, ATTINGAL. - EXT.P5: COPY OF THE TAX RECEIPT. - EXT.P5(a): COPY OF THE TAX RECEIPT - EXT.P6: COPY OF ORDER PASSED BY THE TAHSILDAR DATED 25.8.06 - EXT.P7: COPY OF THE BASIC TAX REGISTER. - EXT.P8: COPY OF ORDER DATED 26.3.2007 PASSED BY THE DISTRICT COLLECTOR. - EXT.P9: COPY OF THE REVIEW PETITION BEFORE THE DISTRICT COLLECTOR ON 5.6.07 FILED BY THE PETITIONER. - EXT.P10: ATTESTED COPY OF PARTITION DEED NO.2212 OF 1108 ME. - EXT.P11: TRUE COPY OF THE FIELD MEASUREMENT SKETCH OF SY.NO.668-C. TRUE COPY ## **M.N.KRISHNAN, J.** ## **-------------------------W.P.(C). NO. 10610 OF 2008 --------------------Dated this the 11[th ] day of April, 2008** ## **JUDGMENT** This writ petition is preferred with a prayer to set aside Ext.P4 order passed by the Subordinate Judge, Attingal, in CMA 8/07. The learned Sub Judge reversed the order of the learned Munsiff in IA 2021/06 in OS 302/06. The suit is one for a permanent injunction and the interim relief sought for, is for an interim injunction. The brief facts necessary for disposal of the writ petition are as follows: 2. The plaintiff obtained the property by virtue of an assignment deed executed by one Sundharangadhan in the year 1995, which is marked as Ext.A1. Sundharangadhan in turn obtained the property from one Jayakumari by virtue of Ext.A2 document. The original document relied upon is a partition deed of the year 1109, which has already been produced as Ext.P10. There was a partition deed in the year 1966 whereby this property has been set apart to the sharers. The original document of the year 1109, which is produced before this court and which is referred to at page 18, is the property in 668-C having an extent of 9 cents. But when the subsequent partition deed of the year 1966 comes, it is specifically stated that though it is shown as 9 cents, as per the measurement it is 27 cents. The subsequent documents would also reveal WPC NO 10610/08 2 that the extent of the property claimed by the plaintiff is 27 cents out of which one cent has been taken for way and balance 26 cents is the litigated property. On the other hand, learned counsel for the defendant, who is the writ petitioner before me, would strongly contend that the total extent of the property covered by the 1109 document is only 9 cents and therefore any addition or deletion in any subsequent document showing the extent as 27 cents will not confer any right on the plaintiff. He had also drawn my attention to a sketch, which is produced as Ext.P11, wherein it is shown that the total extent of 668-A is 92 cents 668-B is 34 cents and 668C is 9 cents. The trial court relied upon the document issued by the Tahsildar whereby he cancelled the order issued in favour of the plaintiff by which she was permitted to remit tax for 27 cents of property. But subsequently the matter was taken up in appeal and the District Collector reversed that finding and held that the plaintiff is entitled to 27 cents. 3. I am informed that a review petition or revision is preferred before the appropriate authority and the operation of the order of the District Collector is stayed. I have referred to these facts to show the stand of the parties in the matter. We are now concerned with a petition for interim injunction. Irrespective of the question of title, what has to govern is the proof of possession on the date of institution of the suit. It has to be remembered that Ext.A1 is of the year 1966, Ext.A2 is of 1978 and Ext.A3 is of 1995. All these documents whould show that though the extent shown WPC NO 10610/08 3 in the original document is 9 cents, the total extent is 27 cents and it has also given the link measurements in all those documents. The appellate court has also referred to various documents in the form of Exts. A4, A9, A11, A14 and A15, which would support the case of the plaintiff that she is in actual physical possession of the plaint schedule property. When the property was resurveyed, this property came into the Re-Sy. No.134/11 and the extent covered is 27 cents. To confirm all these things, a Commissioner was appointed in this case. He inspected the property and found that the entire property of 27 cents is lying as a compact plot. This is a strong indication of possession of the plaintiff. The Commissioner has reported that there is no property immediately on any side of the plaint schedule property in possession of the defendant. The Commissioner found that there is a property of one Sukumaran and thereafter there is a way and the property claimed by the defendant is only on the other side of the way. So the appellate court has not relied its decision merely on Ext.A17, which is an order passed by the District Collector, but had taken the decision after analysing the sum and substance of the materials available. I am not entering into the question of controversy regarding the 1109 document, where the extent of the property covered by 668-C is shown as only 9 cents. But in a case of injunction, the court is preliminarily concerned with the factum of possession on the date of institution of the suit. It has to be stated that by conduct of the plaintiff and her WPC NO 10610/08 4 predecessors right from 1966, the property is described to be in 668-C, having an extent of 27 cents with the side measurements. On the basis of the same, the property has been enjoyed and the Re-Survey has been done which has become final at this stage. So all these necessary materials have been considered together by the appellate court and the sum and substance of the materials had been analysed and the court has come to the conclusion that the plaintiff has, prima facie, satisfied that there is act of possession for the plaintiff. The tell tale substance is the lye of the property as compact compound and that there is no property to the defendant immediately on any sides of the plaintiff's property. So from these materials, I cannot hold that the appellate court has failed to analyse the matter correctly. 4. Learned counsel for the petitioner has brought to my notice a Division Bench decision of this Court in **Basselios Thomas I Catholicos v. Thomas Mar Athanasius** [ 2003 (1) KLT 10] wherein at para 30 of the judgmentit is held that “the appellate court can interfere only when the order is found to be arbitrary, unjust, unfair or illegal.” Now it has to be stated that the lower court refused the order of injunction on the basis of an order passed by the Tahsildar annulling payment of tax with respect to 27 cents. It had been subsequently annulled by the District Collector and the matter is still pending consideration of the appropriate authorities. But the WPC NO 10610/08 5 other documents prior to the institution of the suit right from 1966 is relied upon by the party to establish the factum of possession. Those documents from the year 1966 onwards would prima facie strongly establish the factum of possession of the plaintiff. So also balance of convenience and irreparable injury. So the approach of the trial court, which was erroneous, had been corrected by the District Judge. I do not find any illegality or irregularity to interfere. The order under challenge does not call for any interference. Therefore the writ petition is dismissed. ## **M.N.KRISHNAN, JUDGE** vps WPC NO 10610/08 6 WPC NO 10610/08 7