Vasudevan vs Arumughan
2021 Latest Caselaw 18853 Ker

  OP(C).1087/21                    1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
   FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
                        OP(C) NO. 1087 OF 2021
  AGAINST THE ORDER/JUDGMENT IN OS 258/2016 OF MUNSIFF COURT,
                          CHITTUR, PALAKKAD
PETITIONER/S:

           VASUDEVAN
           AGED 73 YEARS
           S/O CHAMI,RESIDING AT KANNACHICHALLA,
           MUTHALAMADA POST,CHITTUR TALUK,
           PALAKKAD DISTRICT-678507.

           BY ADVS.
           SAJAN VARGHEESE K.
           LIJU. M.P
           JOPHY POTHEN KANDANKARY



RESPONDENT/S:

           ARUMUGHAN
           AGED 83 YEARS
           S/O VELAYUDHAN,RESIDING AT KANNCHICHALLA,
           MUTHALAMADA POST,CHITTUR TALUK,
           PALAKKAD DISTRICT-678507.

             BY ADVS.
             JACOB SEBASTIAN
             K.V.WINSTON




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
    OP(C).1087/21                       2




                               V.G.ARUN, J.
                -----------------------------------------------
                       O.P(C).No. 1087 of 2021
                -----------------------------------------------
            Dated this the 10th day of September, 2021

                                JUDGMENT

The petitioner is the plaintiff in O.S.No.258 of 2016 on the files of

the Munsiff's Court, Chittur. The suit is filed for permanent prohibitory

injunction restraining the respondent from interfering with the peaceful

possession and enjoyment of the plaint schedule property and for

other ancillary reliefs. The averments in the suit are to the following

effect;

The plaint schedule property originally belonged to the mother of

the plaintiff named 'Kunja', who had taken the property on lease from

one Krishna Iyer. Kunja had Verumpattam right over the property and

was residing there with family in a thatched shed constructed by her.

Kunja died on 30.11.2012 and the plaintiff is her only surviving legal

heir. The plaintiff converted the house into a tiled house and has been

in uninterrupted possession of the property all throughout. Due to

inadvertent omission, neither Kunja nor the plaintiff made efforts for

obtaining purchase certificate for the property. Utilising this

opportunity, the defendant obtained purchase certificate in his name

and is attempting to forcibly evict the plaintiff.

2. The children of the respondent has filed O.S.No.464 of 2016

before the Munsiff's Court, Chittur seeking recovery of possession of

the plaint schedule property by evicting the petitioner and his wife.

The relief is founded on the strength of the purchase certificate and

the settlement deed executed by the respondent in favour of his

children. The subject matter of both the suits being the same, the trial

court ordered joint trial of the suits. At that juncture, the petitioner

filed an interlocutory application (I.A.No.56 of 2021) in O.S.No.258 of

2016, requiring the court to refer the question of tenancy over the

plaint schedule property to the Land Tribunal, Kollamkode under

Section 125(3) of the Kerala Land Reforms Act. The learned Munsiff

dismissed the application vide Exhibit P7 order. Hence, the original

petition.

3. Sri.Sajan Varghese K., learned counsel for the petitioner

assailed the reasoning in Exhibit P7 and contended that the trial court

committed a patent mistake by dismissing the application on the

premise that the petitioner's suit is one for permanent prohibitory

injunction based on possession and hence, no question of title arises

for consideration. The said finding is erroneous, since the petitioner's

suit is being tried along with O.S.No.464 of 2016, wherein the relief is

for recovery of possession on the strength of title. It is contended that

purchase certificate obtained by the respondent is not binding on the

petitioner and both sides are claiming tenancy right over the plaint

schedule property. Therefore, the trial court was bound to refer the

question of tenancy to the Land Tribunal. In support of the contention,

reliance is placed on the decision in Viswambaran v. Sanu [2018 2

KLT 947].

4. Sri.Jacob Sebastian, learned counsel for the respondent

submitted that the question of tenancy does not arise in a suit for

injunction, which is to be decided on the basis of possession. In

support of the contention, reliance is placed on the decision of this

Court in Kesava Bhat v. Subraya Bhat [1979 KLT 766] and Nur

Muhammed v. Moideen Rowther [2009 (4) KHC 964]. Even

otherwise, the question of tenancy does not arise, the respondent

having been issued with purchase certificate. Placing reliance on the

decision of the Apex Court in Thomas Antony v. Varkey Varkey [AIR

2000 SC 1], it is argued that the bona fides of the application is also a

relevant factor to be taken into account. The petitioner having filed the

interlocutory application in his suit, merely because joint trial is

ordered, even if the other suit is one for recovery of possession.

3. Indisputably, the petitioner submitted the application in

O.S.No.258 of 2016, wherein the prayer is only for a permanent

prohibitory injunction. The legal position of there being no necessity of

referring the question of tenancy in a suit for permanent prohibitory

injunction as also mandatory injunction, is well settled by the decisions

cited above. The only other contention is that joint trial having been

ordered and the other suit, O.S.No.464 of 2016, being one for recovery

of possession, the court below should have referred the question of

tenancy to the Land Tribunal. As rightly held by the learned Munsiff,

the question does not survive for consideration inasmuch as the

plaintiffs therein are seeking recovery on the strength of purchase

certificate issued in the name of their predecessor-in-interest. The

decision in Viswambaran (supra) was rendered under entirely

different circumstances and therefore, has no application to the instant

case. Hence, I find no reason to interfere with the impugned order.

In the result, the original petition is dismissed.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX OF OP(C) 1087/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO.258/2016 ON THE FILE OF THE MUNSIFF'S COURT,CHITTUR.

Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED ON EXHIBIT P1 SUIT.

Exhibit P3 TRUE COPY OF THE PLAINT IN O.S.NO.464/2016 ON THE FILE OF THE MUNSIFF'S COURT,CHITTUR.

Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXHIBIT P3.

Exhibit P5 TRUE COPY OF THE ORDER DATED 28.01.2021 PASSED IN I.A.NO.153/2021 IN EXHIBIT P1 SUIT.

Exhibit P6 TRUE COPY OF I.A.NO.56/2021 FILED IN EXHIBIT P1 SUIT.

Exhibit P7 TRUE COPY OF THE ORDER DATED 11.02.2021 PASSED IN EXHIBIT P6.