P.A.Tomy @ Avira Tomy vs Kunjumaitheen
2021 Latest Caselaw 3067 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

  THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                   OP(C).No.1201 OF 2020


PETITIONER/PETITIONER/PLAINTIFF:

            P.A.TOMY @ AVIRA TOMY,
            AGED 60 YEARS,
            S/O.AVIRA, PUTHANVETTIL (AYATHUKUDIIL) HOUSE,
            VENGOLA KARA, VENGOLA VILLAGE, KUNNATHUNAD
            TALUK, ERNAKULAM DISTRICT.

            BY ADVS.SRI.P.SUJITH KUMAR
                    SRI.S.A.ANAND

RESPONDENT/RESPONDENT/DEFENDANT:

            KUNJUMAITHEEN,
            AGED 68 YEARS, S/O.BAVA, MUNDATTU HOUSE,
            KAVUMKARA, MARKET.P.O., MUVATTUPUZHA VILLAGE,
            ERNAKULAM DISTRICT, PIN-68667

            BY ADVS. SRI.M.M.ALIYAR
                     SRI.SUNIL NAIR PALAKKAT
                     SRI.K.N.ABHILASH
                     SRI.M.A.AHAMMAD SAHEER
                     SRI.P.B.MUHAMMED AJEESH

     THIS  OP  (CIVIL)   HAVING     BEEN   FINALLY  HEARD ON
28.01.2021, THE COURT    ON THE     SAME   DAY DELIVERED THE
FOLLOWING:
 O.P.(C)No.1201/2020

                                         -:2:-




                      Dated this the 28th day of January,2021

                               J U D G M E N T

The order under challenge in this proceeding

under Article 227 of the Constitution of India, is

Ext.P27 dated 13.07.2020 passed by Munsiff Court,

Muvattupuzha in O.S.No.358/2019.

2. The impugned order was passed in I.A.No.6/2020 filed by the plaintiff in the suit

seeking an order restoring plaint schedule

property to its original condition as on the date

of suit on the allegation that a part of the

property was interfered with during the pendency

of the suit.

3. On the opposition of the defendant/

respondent and after hearing parties and examining

the materials on record, the court below dismissed

I.A.No.6/2020 taking a view that the plaintiff

failed to make out a case justifying issue of an

order for restoration and in the interest of

justice, it was desirable to direct parties to

maintain status quo.

4. Being aggrieved, the plaintiff has filed

this original petition.

O.P.(C)No.1201/2020

5. The suit property is a building which,

according to the petitioner, is in his exclusive

ownership and possession having it been acquired

under two sale deeds dated 19.10.1994 and

29.03.2019. The suit property measures only 0.5

cents of land and a building covering the entire

site. Allegation made against the respondent is to

the effect that he has been making attempts to

trespass into part of the building and take

possession of it. An order of temporary injunction

was issued on 29.06.2019 in the suit for permanent

injunction, against alleged trespass.

6. The defendant was admittedly owning

property to the south of suit property, which

according to plaintiff, had been wholly acquired

by Kerala State Transport Project[KSTP] and no

portion of land belonging to the defendant was

thereafter left out.

7. On the other hand, the contention of the

defendant is that the suit schedule description

itself is wrong and the building and site take in

a portion of property acquired by him under a sale

deed dated 12.01.2000 and a part of it alone was

acquired by KSTP leaving balance in his absolute O.P.(C)No.1201/2020

ownership and possession. His specific contention

based on the sale deed is that out of 745 sq.

/3 of it was acquired and he

retains the remaining 1 / 3. It is also his

contention that building in plaint property was

being constructed by a common contractor engaged

by both parties.

8. Along with the suit, a commission was

taken out in which it was found by the Advocate

Commissioner that petitioner was doing financing

business in the building at the time of his visit

and it was petitioner himself who opened the

shutter enabling entry into the building. The

Commissioner noted that there was no partition or

dividing wall constructed in any part of the suit

property at the time of his visit.

9. The situation which led the petitioner to

file I.A.No.6/2020 was in the wake of trespass

allegedly made by the respondent into a part of

the building and erecting a partition wall

reducing a portion thereof to his possession.

10. According to the petitioner, there was

no such dividing wall when the Commissioner

formerly visited the property but subsequently and O.P.(C)No.1201/2020

during the pendency of the lis, defendant

trespassed and put up a dividing wall reducing a

portion thereof to his possession. In order to

substantiate the alleged trespass, a commission

was taken out and in the report dated 04.06.2020,

the Commissioner reported that dividing wall was

constructed during the pendency of the suit. The

dimension of the new wall and other details were

also given in the report. Based on the commission

report, the petitioner contends that inasmuch as

interference with the subject matter of suit was

during the pendency of lis, the court below was to

have exercised inherent power under Section 151 of

the Code of Civil Procedure,1908 and ordered

restoration of interfered part of suit property to

its original position.

11. The application was opposed by the

respondent in teeth and nail reiterating his

contentions in the counter which he filed in

answer to the petition for temporary injunction.

12. As I held earlier, the court below was

not satisfied with the plea raised in support of

restoration and it found that petitioner failed to

make out a case necessitating an order for O.P.(C)No.1201/2020

reinstatement but however, it was pleased to

direct the parties to maintain status quo.

13. The challenge in this proceeding raised

by the petitioner is to the effect that the former

commission report clearly indicated that there was

no dividing wall put up at the time of his visit

and the interference with subject matter of

dispute was clearly established by the commission

report after Commissioner having visited the

property second time on 04.06.2020 when he found a

dividing wall erected during the pendency of lis.

The court below was also satisfied that the

partition wall came into existence during the

pendency of the lis.

14. The argument raised by the learned

counsel for the petitioner is that based on

subsequent commission report, the petitioner's

case of trespass stands proved and therefore, this

is a fit case where status quo ante ought to be

ordered. I find my way difficult to accept this

contention at all.

15. It is well nigh settled that in order to

empower a court to order status quo ante, the party applying for it should substantiate that O.P.(C)No.1201/2020

he/she has had a prima facie case of possession on

the date of the suit. The sale deeds in the name

of petitioner only prove that he has got 20

sq.mts.of property. The defendant's sale deed also

shows that he has got 750 sq.links of land.

16. Having regard to the nature of

contentions raised, without the properties being

surveyed and the area of the building which is

subject matter of suit being ascertained in

precise terms, the rival claims made by parties as

to possession of their respective land portions

cannot be decided infallibly. That means issue of

survey commission is highly necessitated in this

matter.

17. Looking at the rough measurements given

by the learned Commissioner in report dated

04.06.2020, it seems that the extent of land in

which building is situated covers a larger area

than what is described in the plaint. In last

paragraph of the report, the eastern and northern

measurements are given as 6.95 mts and 5.95 mts

respectively. This suggests that extent of suit

property exceeds 0.05 cents as against the claim

made in the suit. This further probabilises the O.P.(C)No.1201/2020

contention of the respondent that the suit

building is likely to take in part of his land

covered by his sale deed dated 12.01.2000 also.

This appears to be the reason why the court below

held that petitioner failed to make out a case

warranting interference of court in the matter.

18. To make matters worse, I have also

noticed that temporary injunction was heard on

merits and it was dismissed by a detailed order

passed on 21.05.2020. It may be a fact that

operation of the order was stayed subsequently

and a C.M.Appeal is pending at the instance of the

petitioner challenging the correctness of that

order.

19. This Court is not supposed to go into

the correctness of the order dismissing petition

for temporary injunction since it has already

become subject matter of appeal before first

appellate court. From all the materials placed on

record, I do not find any reason to interfere with

the finding of the court below that petitioner

failed to prove a case necessitating ordering of

status quo ante. I am also of the opinion that parties shall maintain status quo until their O.P.(C)No.1201/2020

rights are decided in the suit on merits.

In the result, original petition fails and it

is dismissed. However, to make sure that none of

the observations made in this order causes

prejudice to the petitioner, I permit the

petitioner to agitate his claim for restoration at

appropriate stage of the suit. Claims for an order

of status quo ante is essentially a question which

requires to be decided on evidence in the instant

suit. When the said question is so raised, at

appropriate stage, I make it clear that the court

below would decide the issue in accordance with

law untrammelled by any of the observations made

in this order.

All pending interlocutory applications will

stand closed.

Sd/-

                                        T.V.ANILKUMAR,JUDGE

DST                                                              //True copy/

                                                                P.A.To Judge
 O.P.(C)No.1201/2020






                         APPENDIX
PETITIONER'S EXHIBITS:



EXHIBIT P1            TRUE COPY OF THE SALE DEED NO.4979/1994
                      DATED 19.10.1994.

EXHIBIT P2            TRUE COPY OF DOCUMENT NO.1336 OF 2019
                      DATED 29.3.2019.

EXHIBIT P3            TRUE COPY OF LETTER NO.C4-720/19/RTI

DATED 5.8.2019 ISSUED BY SPECIAL THAHASILDHAR (LA).

EXHIBIT P4 TRUE COPY OF THE MAHAZAR NO.LAC NO.15/16 DATED 5.8.2019 ISSUED BY SPECIAL THAHASILDHAR (LA).

EXHIBIT P5 TRUE COPY OF VALUATION DETAILS LA.NO.30 DATED 28.2.2015 ISSUED BY EXECUTIVE ENGINEER.

EXHIBIT P6 TRUE COPY OF AWARD NO.28/17 DATED 22.7.2017 ISSUED BY LAND ACQUISITION OFFICER/SPECIAL THAHASILDHAR (LA).

EXHIBIT P7 TRUE COPY OF THE TAX RECEIPT NO.4903006 DATED 11.3.2014 ISSUED BY MARADY VILLAGE OFFICER.

EXHIBIT P8 TRUE COPY OF SALE DEED NO.198/2000 DATED 12.1.2000 RELATING TO 0.20 ARES OF LAND OWNED BY THE DEFENDANT.

EXHIBIT P9 TRUE COPY OF THE PLAINT IN O.S.NO.358 OF 2019 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA.

EXHIBIT P10 TRUE COPY OF INTERIM INJUNCTION ORDER DATED 29.6.2019 IN I.A.NO.2151 OF 2019 IN O.S.NO.358 OF 2019.

EXHIBIT P11 TRUE COPY OF COMMISSION REPORT DATED 10.2.2019 IN I.A.NO.2152 OF 2019 IN O.S.NO.358 OF 2019.

EXHIBIT P12 TRUE COPY OF COUNTER AFFIDAVIT FILED IN I.A.NO.2151 OF 2019 IN O.S.NO.358 OF O.P.(C)No.1201/2020

2019.

EXHIBIT P13 TRUE COPY OF ORDER DATED 21.5.2020 IN I.A.NO.2151 OF 2019 IN O.S.NO.358 OF 2019.

EXHIBIT P14 TRUE COPY OF ORDER DATED 28.5.2020 IN I.A.NO.1 OF 2020 IN O.S.NO.358 OF 2019.

EXHIBIT P15 TRUE COPY OF COMPLAINT DATED 30.5.2020 SUBMITTED BEFORE THE POLICE.

EXHIBIT P16 TRUE COPY OF ACKNOWLEDGEMENT RECEIPT NO.61353/2020 DATED 31.5.2020 FOR HAVING FILED EXT.P15/COMPLAINT.

EXHIBIT P17 TRUE COPY OF PHOTOGRAPHS OF PLAINT SCHEDULE BUILDING.

EXHIBIT P18 TRUE COPY OF PROSECUTION PETITION I.A.NO.7 OF 2020 IN OS.NO.358 OF 2019.

EXHIBIT P19 TRUE COPY OF COUNTER AFFIDAVIT DATED 8.6.2020 IN IA.NO.7 OF 2020 IN O.S.NO.358 OF 2019.

EXHIBIT P20 TRUE COPY OF PETITION FOR RESTORATION I.A.NO.6 OF 2020 IN O.S.NO.358 OF 2019.

EXHIBIT P21 TRUE COPY OF COUNTER AFFIDAVIT DATED 7.6.2020 IN I.A.NO.6 OF 2020 IN O.S.NO.358 OF 2019.

EXHIBIT P22 TRUE COPY OF COMMISSION REPORT DATED 4.6.2020 IN I.A.NO.8 OF 2020 IN OS.NO.358 OF 2019.

EXHIBIT P23 TRUE COPY OF IMPLEADING PETITION I.A.NO.9 OF 2020 IN O.S.NO.358 OF 2019.

EXHIBIT P24 TRUE COPY OF COUNTER AFFIDAVIT DATED 8.6.2020 IN I.A.NO.9 OF 2020.

EXHIBIT P25 TRUE COPY OF STATUS QUO ORDER DATED 8.6.2020 IN I.A.NO.2 OF 2020 IN C.M.A.NO.14 OF 2020.

EXHIBIT P26 TRUE COPY OF JUDGMENT DATED 22.6.2020 IN WPC.NO.11008 OF 2020.

EXHIBIT P27 TRUE COPY OF ORDER DATED 13.7.2020 IN O.P.(C)No.1201/2020

I.A.NO.6 OF 2020 IN O.S.NO.358 OF 2019.

RESPONDENTS' EXHIBITS: NIL