Sujatha vs Mohanan
2022 Latest Caselaw 3150 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
   FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
                    OP(C) NO. 1165 OF 2021
 AGAINST THE JUDGMENT IN CMA 54/2020 OF ADDITIONAL SUB COURT,
                         IRINJALAKUDA
   I.A.NO.3/2020 IN OS 408/2020 OF MUNSIFF COURT, CHALAKUDY
PETITIONER/RESPONDENT NO.1 IN CMA/PETITIONER IN IA    :

          SUJATHA,
          AGED 52 YEARS
          D/O ALINCHERY SANAKARAN, AGED 52 YARS,
          UNEMPLOYED, KAITHAPARAMPIL HOUSE,
          NEAR VAYANASALA, PARIYARAM DESOM & VILLAGE,
          CHALAKUDY TALUK, THRISSUR DISTRICT,
          PIN 680 721.
          BY ADVS.
          M.P.RAMNATH
          P.RAJESH (KOTTAKKAL)
          K.J.SEBASTIAN
          M.VARGHESE VARGHESE
          S.SANDHYA
          BEPIN PAUL
          SHALU VARGHESE
          S.DEEPAK
          ANTONY THARIAN


RESPONDENTS/RESPONDENTS 3 & 4 APPELLANTS 1 & 2 IN
CMA/RESPONDENTS 1 TO 4 IN IA   :

    1     MOHANAN,
          AGED 58 YEARS
          S/O VELLINETH KRISHNAN NAIR,
          NELLAYI DESOM, NANTHIKKARA VILLAGE,
          MUKUNDAPURAM TAKUK,
 O.P.(C)No.1165 of 2021
                                    2

              THRISSUR DISTRICT,
              PIN 680 305.
      2       SUDHA,
              AGED 55 YEARS
              W/O VELLINETH MOHANAN,
              NELLAYI DESOM, NANTHIKKARA VILLAGE,
              MUKUNDAPURAM TAKUK,
              THRISSUR DISTRICT, PIN 680 305
      3       THOMAS,
              AGED 61 YEARS
              S/O ACHADAN VEETTIL LONAPPAN,
              PARIYARAM DESOM & VILLAGE,
              CHALAKUDY TALUK,
              THRISSUR DISTRICT, PIN 680 721
      4       JOSE
              AGED 66 YEARS
              S/O MUNDADAN DEVASSY,
              PARIYARAM SESOM & VILLAGE, CHALAKUDY TALUK,
              THRISSUR DISTRICT, PIN - 680721
              BY ADVS.
              N.L.BITTO
              K.G.BALASUBRAMANIAN



       THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.03.2022,
THE COURT ON 18.03.2022 DELIVERED THE FOLLOWING:
 O.P.(C)No.1165 of 2021
                                         3




                            A.BADHARUDEEN, J.

            ------------------------------------------------------------
                          O.P.(C)No.1165 of 2021
            ------------------------------------------------------------
                  Dated this the 18th day of March, 2022


                               JUDGMENT

This is an original petition filed under Article 227 of

the Constitution of India by the petitioner herein, who is the

plaintiff in O.S.No.408 of 2020 on the file of the Munsiff's Court,

Chalakudy. The respondents herein are the respondents in the

above suit. The judgment in CMA No.54 of 2020 dated

09.04.2021 is under challenge in this original petition.

2. Heard the learned counsel for the petitioner as

well as the respective counsel appearing for the respondents.

3. The petitioner herein filed suit for partition of the

plaint schedule property after ignoring Sale Deed No.2109/2003

of Chalakudy SRO and the subsequent sale deeds in favour of O.P.(C)No.1165 of 2021

defendants 3 and 4. Decree against forcefully possessing the

plaint schedule properties and from inducting strangers therein

also have been prayed for.

4. Along with the suit, the petitioner filed I.A.No.3

of 2020 and sought for an interim injunction against forceful

dispossession of the plaint schedule property and from

obstructing enjoyment of the same by the plaintiff till the

disposal of the suit.

5. The specific case put up by the plaintiff before

the trial court is that the plaint schedule property was

purchased in the name of the first respondent, who is the

husband of the second respondent(sister of the plaintiff), by the

father of the petitioner late Sri.Sankaran Nair acting on

fiduciary relationship and trusteeship maintained between

Sankaran Nair and the first respondent. The further case put

up by the petitioner is that the property was purchased by

Sankaran Nair and he had paid the sale consideration.

Therefore, Sankaran Nair is the title holder of the property and O.P.(C)No.1165 of 2021

therefore, the Sale Deed No.2109/2003 does not confer any

title upon the first defendant or the subsequent purchasers.

Since Sankaran Nair is no more, the petitioner and the 2 nd

respondent being legal heirs became co-owners and the

property is liable to be partitioned among them by metes and

bounds and the petitioner is entitled to get half right over the

plaint schedule item.

6. The respondents resisted the contention and

submitted that Sankaran Nair not given any amount for

purchasing the property and the entire purchase money was

spent by the first respondent who had well paid employment

and therefore, the title of the first respondent is perfect and as

such, the case put up by the petitioner is not believable prima

facie and therefore, the petition sought to be dismissed.

Previous litigations also pointed out.

7. As per order dated 30.11.2020, the learned

Munsiff passed an order of status quo until further orders and

the petition was posted along with suit. O.P.(C)No.1165 of 2021

8. The defendants 3 and 4 filed CMA No.54 of 2020

against order dated 30.11.2020 and as per the judgment dated

09.04.2021, the appellate court reversed the said finding and

dismissed I.A.No.3 of 2020. The said judgment is under

challenge before this Court. The learned counsel for the

petitioner zealously argued that as per Ext.P7 commission

report obtained soon after the filing of the suit, it was found

that the plaintiff had been in possession and enjoyment of the

house situated in the plaint schedule property. Further

commission reported that the house was opened at the time of

inspection by the key handed over by the plaintiff. According to

the learned counsel for the petitioner, though on merits, if the

petitioner's case is found to be on weaker side, on evidence,

then also, the possession that has been enjoyed by the plaintiff

on the date of the suit shall be maintained. However, the

appellate court reversed the order of status quo. He submitted

further that, when the appellate court dismissed the interim

injunction application, respondents 3 and 4 herein, on O.P.(C)No.1165 of 2021

03.07.2021, trespassed into the property, broke open the door

of the house, committed theft of 10 soverigns of jewellery and

also various records that were kept by the petitioner inside the

house. Thereafter, they have demolished the house by using

JCB. According to the learned counsel for the petitioner, after

distruction of the house, the petitioner became homelss and

she put up a temporary shelter under a plastic sheet and now

she has been residing therein. Therefore, the temporary

residence and possession are liable to be protected by

interfering the judgment of the appellate court.

9. Per contra, the learned counsel for the

contesting respondents vehemently opposed the contention

raised by the learned counsel for the petitioner. He submitted

that the petitioner has no manner of right in the property and

she obtained an ex parte commission report at the time of filing

O.S.No.408 of 2020 and without proving the authenticity of the

same, no credence shall be given to the observation in the

commission report. He submitted that, in between the parties, O.P.(C)No.1165 of 2021

earlier also there were litigation. He submitted that O.S.No.495

of 2010 was filed by the first respondent against the petitioner.

The suit as well as the counter claim filed by the plaintif were

dismissed. Thereafter, the first respondent filed O.S.No.294 of

2018 and the said suit was decreed in favour of the first

respondent. Thereafter, the plaintiff filed O.S.No.98 of 2019

and deviating from the contentions raised in O.S.No.98 of 2019,

the petitioner herein filed the present suit and the interim

injunction application. The appellate court considered the

matter in detail based on Exts.B1 to B45 marked on the side of

the second and third respondents and thereby, the interim

injunction application filed by the petitioner was dismissed.

Therefore, the order impugned does not warrant interference by

this Court by exercising the limited supervisory jurisdiction

under Article 227 of the Constitution of India.

10. I have perused the judgment impugned.

11. In paragraph 12, the learned Sub Judge

observed as under, O.P.(C)No.1165 of 2021

" O.S.No.98/2019 filed by the plaintiff and her daughter against the first defendant for permanent property injunction restraining the first defendant from obstructing peaceful residence of the plaintiff in the plaint schedule property, from taking away household articles of the plaintiff and her parents and also from committing any act of waste there in. The suit can be seen to have resulted in exhibit B21 judgment dated 6/3/20 which can be seen to be a dismissal of the suit on account of the absence of the plaintiff and defendant. Exhibit B22 can be seen to be a complaint filed under Section 138 NI Act by the father of the plaintiff against the first defendant herein. In that case, as per Exhibit B23, deposition can be seen to have been given by the plaintiff herein. The end result was an acquittal as can be seen from exhibit B24. The present suit as OS 408/20 is the final pending case between the parties in which unlike in the earlier cases, the third and fourth defendant have also been roped in which can be seen to be on account of exhibit B32 dated 25/9/20."

12. Thus, it appears that the petitioner herein filed

O.S.No.98 of 2019 and the same was dismissed as per Ext.B21 O.P.(C)No.1165 of 2021

judgment dated 06.03.2020 and it was thereafter, the present

suit claiming more or less the same relief has been brought

into.

13. Here, there is no prayer in the suit to declare the

title deed in favour of the first defendant as null and void or to

declare that the property is that of Sankaran Nair. The plaintiff

wants to partition the property ignoring the title deeds. I am

not inclined to address on those aspects at present. Going by

the order impugned, I am of the view that the petitioner has

been filing suit one after the another ignoring the statutory

restrictions under Order 2 Rule 2 and the principles of res-

judicata under the Code of Civil Procedure with intention to put

the respondents under the veil of litigation. I am of the view

that the appellate court rightly discussed the entire matters

within the ambit of the principles governing grant of interim

injunction and finally dismissed the interim application.

14. Going by the order, I do not find any illegality,

perversity or arbitrariness to interfere with the impugned order, O.P.(C)No.1165 of 2021

in a petition filed under Article 227 of the Constitution of India.

Therefore, this original petition lacks merit and the same

deserves dismissal.

Accordingly, this original petition is dismissed.

Sd/-

A.BADHARUDEEN, JUDGE rkj O.P.(C)No.1165 of 2021

APPENDIX OF OP(C) 1165/2021

PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE AMENDED PLAINT IN OS NO.408/2020 OF HON'BLE MUNSIFF'S COURT, CHALAKUDY FILED BY THE PETITIONER HEREIN AS PLAINTIFF.

Exhibit P2 TRUE PHOTOCOPY OF JUDGMENT DATED 22.03.2012 IN OS NO.495/2010 OF THE HON'BLE MUNSIFFS COURT, CHALAKUDY IN SUIT FILED BY 1ST RESPONDENT HEREIN AS PLAINTIFF.

Exhibit P3 TRUE PHOTOCOPY OF THE PLAINT IN OS NO.294/2018 BEFORE THE HON'BLE MUNSIFF'S COURT, CHALAKUDY FILED BY 1ST RESPONDENT HEREIN AS PLAINTIFF.

Exhibit P4 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED IN OS NO.294/2018 BEFORE THE HON'BLE MUNSIFF'S COURT, CHALAKUDY BY PETITOINER HEREIN AS DEFENDANT.

Exhibit P5 TRUE PHOTOCOPY OF THE RATION CARD BEARING NO.1875099842 OF THE PETITIONER.

Exhibit P6 TRUE PHOTOCOPY OF THE VOTER ID CARD NO.ZAG0300772 OF THE PETITIONER.

Exhibit P7 TRUE PHOTO COPY OF THE VOTER IS CARD NO.ZAG0442061 OF VARSHA ALINCHERY (D/O.PETITIONER).

Exhibit P8 THE TRUE PHOTOCOPY OF THE AADHAR CARD NO.497407716385 OF THE PETITIONER.

Exhibit P9 TRUE PHOTOCOPY OF THE AADHAR CARD NO.769197878762 OF VARSHA ALINCHERY (DAUGHTER OF THE PETITIONER).

Exhibit P10 TRUE PHOTOCOPY OF THE INDIAN PASSPORT NO.S7228434 OF VARSHA ALINCHERY (DAUGHTER OF THE PETITIONER).

O.P.(C)No.1165 of 2021

Exhibit P11 TRUE PHOTOCOPY OF THE INTERIM INJUNCTION APPLICATION AGAINST SUCH FORCEFUL DISPOSSESSION ETC. FILED AS IA NO.3/2020 IN OS NO.408/2020 BEFORE THE HGON'BLE MUNSIFFS COURT, CHALAKUDY.

Exhibit P12 TRUE PHOTOCOPY OF THE OBJECTIONS FILED BY RESPONDENTS 1 & 2 /DEFENDANTS 1 & 2 IN IA NO.3/2020 IN OS NO.408/2020 BEFORE THE HON'BLE MUNSIFF COURT, CHALAKUDY.

Exhibit P13 TRUE PHOTOCOPY OF THE OBJECTIONS FILED BY RESPONDENTS 3 & 4 /DEFENDANTS 3 & 4 IN IA NO.3/2020 IN OS NO.408/2020 BEFORE THE HON'BLE MUNSIFF'S COURT, CHALAKUDY.

Exhibit P14 TRUE PHOTOCOPY OF THE ORDER DATED 30.11.2020 IN IA NO.3/2020 IN OS NO.408/2020 OF THE HON'BLE MUNSIFFS COURT, CHALAKUDY.

Exhibit P15 TRUE PHOTOCOPY OF THE MEMORANDUM OF APPEAL IN CMA NO.54/2020 BEFORE HON'BLE SUB COURT, IRINJALAKUDA FILED BY RESPONDENTS 3 & 4.

Exhibit P16 TRUE PHOTOCOPY OF THE JUDGMENT DATED 09.04.2021 OF HON'BLE SUBORDINATE JUDGE'S COURT, IRINJALAKUDA IN CMA NO.54/2020. Exhibit P17 TRUE PHOTOCOPY OF THE ADVOCATE COMMISSIONER'S REPORT DATED 06.10.2020 IN IA NO.6/2020 IN IS NO.408/2020 BEFORE HON'BLE MUNSIFFS COURT, CHALAKUDY.

Exhibit P18 TRUE PHOTO COPY OF THE COMMISSION REPORT DATED 09.07.2021 IN IA NO.12/2021 IN OS NO.12/2021 IN OS NO.408/2020 BEFORE THE HON'BLE MUNSIFFS COURT, CHALAKUDY.

Exhibit P19 TRUE COPIES OF THE PHOTOGRAPHS 4 NOS.

SHOWING THE DEMOLISHED HOUSE IN PLAINT SCHEDULE PROPERTY.