1.Kothavara Sanmarga Poshini ... vs Girija Devi
2023 Latest Caselaw 325 Ker

OP(C) NO.2586 OF 2022               1



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                        OP(C) NO. 2586 OF 2022
               OS 60/2022 OF MUNSIFF COURT, VAIKOM
PETITIONERS/DEFENDANTS:

    1     KOTHAVARA SANMARGA POSHINI BHAJANAMADOM
          KUNNAKOVIL, KOTHAVARA P.O, VAIKOM- 686607.
          REP. BY ITS PRESIDENT SAJEEV, AGED 48 YRS,
          S/O DASAN, AALAIKAL VETTIL, KOTHAVARA P.O, VAIKOM,, PIN
          - 686607
    2     MINI REJI
          AGED 45 YEARS
          W/O REJI,
          NAADANGATHUTHARA VETTIL, KOTHAVARA P.O,
          VAIKOM, PIN- 686607,
          SECRETARY, KOTHAVARA SANMARGA POSHINI BHAJANAMADOM,
          KUNNAKOVIL, KOTHAVARA P.O, VAIKOM-
          , PIN - 686607
          BY ADVS.
          S.SUDHISH KUMAR
          K.B.DAYAL
          SIBI KARUN
          P.Y.SHEHEERA
          GOPIKA.N.NAIR
          HARIKRISHNA DAYAL K.


RESPONDENT/PLAINTIFF:

          GIRIJA DEVI
          AGED 58 YEARS
          W/O INDRA KUMAR,KUNNAKKOVIL VETTIL, KOTHAVARA P.O,
          VAIKOM, PIN - 686607
          BY ADV SHARAN SHAHIER


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO.2586 OF 2022              2




                          JUDGMENT

Aggrieved by Ext.P13 common order passed in I.A.

No.7/2022 in O.S.No.60/2022 by the Court of the Munsiff,

Vaikom, the petitioners in the application/defendants in the

suit have filed the original petition. The respondent in the

application is the plaintiff in the suit.

2. The concise case of the petitioners, relevant for

the determination of the original petition, is: the

respondent has filed the suit for fixation of boundary and

consequential reliefs. The suit is resisted by the

petitioners through Ext.P2 written statement. There were

earlier rounds of litigation in respect of the same property

and, by Exts.P5 and P8 judgments this Court has held that

the predecessors-in-interest of the petitioners have a right

to conduct 'bhajanas' in the plaint schedule property on

the strength of a licence. Subsequent to the said

judgments, the property was sold to the respondent's

husband by Ext.P9 sale deed. After the death of the

respondent's husband, the property was devolved on her.

Thereafter, she has filed the present suit. Along with the

suit, the respondent filed I.A.No.1/2022 for an order of

temporary prohibitory injunction. The petitioners filed

I.A.No.7/2022 to permit them to conduct the annual

festival on a temporary basis from 25.01.2022 to

01.01.2023. The said application was resisted by the

respondent. The court below, by the impugned common

order, allowed I.A. No.1/2022 filed by the respondent by

restraining the petitioners from putting a boundary

separating the plaint schedule item Nos.1 and 2 properties

till the disposal of the suit, but dismissed I.A. No.7/2022

filed by the petitioners. Ext.P13 order so far as it relates

to the dismissal of I.A. No.7/2022 is erroneous and wrong.

Hence, the original petition.

3. Heard; Sri. S. Sudhishkumar, the learned counsel

appearing for the petitioners and Sri.Sharan Shahier, the

learned counsel appearing for the respondent.

4. When this original petition came up for admission

on 27.12.2022, this Court passed the following interim

order:

"4. The interim relief prayed for is to the effect that the petitioners shall be permitted to conduct the Annual Festival of the Kothavara Sanmarga Poshini Bhajanamadom from 25.12.2022 to 01.01.2023 as shown in Exhibit P10 Program Book in the plaint schedule property.

5. Exhibit P4 and Exhibit P7 decrees will show that the Kothavara Sanmarga Poshini Bhajanamadom is having irrevocable easement over 19 cents of land scheduled in O.S.No.11/1967 and O.S.No.105/1982 of Munsiff Court, Vaikom which were upheld by this Court in Second Appeals.

6. Sri.Sharan Shahier, learned counsel appearing for the respondent submitted that, the respondent is the absolute owner in possession of plaint schedule item no.1 property and only item no.2 property is owned and possessed by the petitioners/ defendants. The Annual Festival of the Kothavara Sanmarga Poshini Bhajanamadom has already begun on 25.12.2022, and according to the respondent the petitioners trespassed into plaint schedule item no.1 property and put up sheds and structures therein, causing obstruction to their free ingress and egress, and they are committing wastage in that property.

7. Sri.K.B.Dayal, learned counsel appearing for the petitioners submitted that, the petitioners can undertake that they will not commit any obstruction, damage or wastage in plaint schedule item no.1 property, while conducting the annual festival of the Bhajanamadom, and they will not do anything adverse to the interest of the respondent in that property which admittedly belongs to her absolutely, subject to their limited right for conducting the annual festival. Recording their undertaking that they

will not commit any obstruction, wastage or damage to the structures, usufructs or trees in plaint schedule item no.1 property the petitioners are permitted to conduct the annual festival of the Kothavara Sanmarga Poshini Bhajanamadom in plaint schedule property from 26.12.2022 6:00 AM till 6:00 PM on 01.01.2023. Immediately on the next day, the petitioners shall remove all the temporary structures put up, furniture, utensils etc., used for the festival from plaint schedule item no.1 property. The petitioners are hereby directed that they shall not put up any new sheds or structures in plaint schedule item no.1 property or make extension of any existing sheds, under the guise of the Annual Festival. The petitioners shall ensure that least inconvenience is caused to the respondent while conducting the Annual Festival of the Kothavara Sanmarga Poshini Bhajanamadom in plaint schedule item nos.1 and 2 property. It is made clear that the above said arrangement is made only for the annual festival of the 1st petitioner Bhajanamadom for this year only, and, both parties shall report strict compliance of the directions, given, by next hearing date on 10/01/2023.

The learned counsel for the respondent is challenging the maintainability of the O.P.(C) itself. The question of maintainability is left open to be heard on 10/01/2023."

5. In the light of the interim order passed by this

Court, I.A.No.7/2022 (Ext.P11) has become infructuous, as

this Court has granted the relief sought for in Ext.P11

application. Therefore, I am of the definite view that

nothing further survives in the original petition.

Resultantly, I direct the Court of the Munsiff to

consider and dispose of O.S.No.60/2022, untrammelled by

any observation made in Ext.P13 order so far as it relates

to I.A.No.7/2022 and the interim order passed by this

Court. The submission of the learned counsel appearing

for the petitioners that the petitioners have no grievance

against the order passed in I.A.No.1/2022 is recorded.

The original petition is ordered accordingly.

Sd/-

C.S.DIAS, JUDGE okb/11.1.2023 //True copy// P.S. to Judge

APPENDIX OF OP(C) 2586/2022

PETITIONER EXHIBITS Exhibit P1 COPY OF THE PLAINT IN O.S NO. 60/2022 PENDING BEFORE THE LEARNED MUNSIFF'S COURT, VAIKOM Exhibit P2 COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S NO. 60/2022 Exhibit P3 COPY OF THE JUDGMENT IN O.S NO. 11/1967 ON THE FILE OF THE LEARNED MUNSIFF'S COURT, VAIKOM DATED 29.02.1968 Exhibit P4 COPY OF THE DECREE IN O.S NO. 11/1967 ON THE FILE OF THE LEARNED MUNSIFF'S COURT, VAIKOM Exhibit P5 COPY OF THE JUDGMENT IN S.A NO. 341/1974 OF THIS HON'BLE COURT DATED 27.08.1976 Exhibit P6 COPY OF THE JUDGMENT IN O.S NO. 105/1982 ON THE FILE OF THE LEARNED MUNSIFF'S COURT, VAIKOM DATED 21.08.1985 Exhibit P7 TRUE COPY OF THE DECREE IN O.S NO.105/1982 ON THE FILE OF THE LEARNED MUNSIFF'S COURT, VAIKOM Exhibit P8 COPY OF THE JUDGMENT IN S.A NO.621/1987 OF THIS HON'BLE COURT DATED 07.01.1992 Exhibit P9 CERTIFIED COPY THE DOCUMENT NO. 179/1997 OF THALAYAZHAM SUB REGISTRY Exhibit P10 COPY OF THE PROGRAM BOOK Exhibit P11 COPY OF I.A NO. 7/2022 IN O.S NO.60/2022 Exhibit P12 COPY OF THE OBJECTION FILED BY THE PLAINTIFF IN EXHIBIT P11 I.A Exhibit P13 COPY OF THE COMMON ORDER PASSED BY THE LEARNED MUNSIFF'S COURT, VAIKOM IN I.A NO.7/2022 AND 1/2022 DATED 20.12.2022