Kerala High Court
Shanavas vs Khadeeja Muhammed on 14 November, 2024
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F.A.O.No.105/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA,
1946
FAO NO. 105 OF 2024
AGAINST THE ORDER DATED 19.07.2024 IN I.A.NO.1/2024
IN OS NO.36 OF 2024 OF ADDITIONAL SUB COURT,NORTH PARAVUR
APPELLANT/PETITIONER/PLAINTIFF:
SHANAVAS
AGED 48 YEARS
S/O. ABDUL SALAM, VEZHAPPILLI KOYIKKAL, PANAYIKKULAM,
ALANGAD VILLAGE, PARAVUR TALUK, (NOW WORKING AT DUBAI)
REP BY HIS UNCLE AND AGENT/ POWER OF ATTORNEY HOLDER,
ABDUL RAHMAN (CORRECT SPELLING IS ABDUL RAHIMAN), AGED
59 YEARS, S/O. KUNJUMOHAMMED HAJI, PUNNILATH HOUSE,
RESIDING AT CHAITHANYA NAGAR, AZHIKODE KARA, ERIYAD,
ERIYAD VILLAGE, KODUNGALOOR TALUK, PIN 680666., PIN -
683511
BY ADVS.
M.P.RAMNATH
P.RAJESH (KOTTAKKAL)
K.J.SEBASTIAN
M.VARGHESE VARGHESE
UMA R.KAMATH
S.SANDHYA
BEPIN PAUL
SHALU VARGHESE
ANTONY THARIAN
POOJA KRISHNA K.B.
SHANTHI JOHN
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F.A.O.No.105/2024 2
RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 3:
1 KHADEEJA MUHAMMED
AGED 56 YEARS
W/O. LATE MUHAMMED, RESIDING AT KOYIKKAL HOUSE,
PANAYIKULAM P.O., PANAYIKULAM KARA, ALANGAD VILLAGE,
PARAVUR TALUK, PIN - 683511
2 ABDUL SAMAD HUSSAIN
AGED 28 YEARS
S/O. LATE MUHAMMED, RESIDING AT KOYIKKAL HOUSE,
PANAYIKULAM P.O., PANAYIKULAM KARA, ALANGAD VILLAGE,
PARAVUR TALUK, PIN - 683511
3 MUHSINA V.M
AGED 33 YEARS
D/O. LATE MUHAMMED AND W/O. SHIFAS MUHAMMED, RESIDING
AT PUTHIYAVEETTIL, 6/134A MARAPPILLI P.O., NORTH
EZHIPRAM, KUNNUVAZHI ROAD, MARAMPILLI VILLAGE,
KUNNATHUNADU TALUK, PIN - 683105
BY ADVS.
VINEETH KURIAKOSE
DOMINIC JOHNSON(D-101)
JEEMON K.ABRAHAM(K/000695/1987)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 01.11.2024, THE COURT ON 14.11.2024, DELIVERED THE
FOLLOWING:
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F.A.O.No.105/2024 3
JUDGMENT
The dismissal of I.A.No.1/2024, an application for temporary
injunction under Order XXXIX Rule 1 of the Code of Civil Procedure,
1908, by the Additional Sub Court, North Paravur, is under challenge
in this appeal filed by the plaintiff in O.S.No.36/2024 on the files of
the said court.
2. The suit was one for declaration that the partition deed
No.595/2016 of Alangatt S.R.O (Ext.A2) has been created by
perpetrating fraud, misrepresentation and illegality; and seeking
partition of the suit property. The suit property belonged to Abdul
Salam, the deceased father of the plaintiff. After the death of the
plaintiff's father, the said property devolved upon the plaintiff, his
mother and siblings and also upon the mother of the deceased by
way of intestate succession. It is stated that the mother of the
plaintiff's father obtained 1/6 share over the suit property as per the
relevant provisions of intestate succession of Muslim law. The above
said ⅙ share obtained by the mother of plaintiff's father was said to
have been gifted (vide Ext.A1) to the husband of the 1st defendant,
who was the direct brother of deceased father of the plaintiff. The
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defendants 2 and 3 are the son and daughter of the 1st defendant.
The husband of the 1st defendant, who is now no more, had
allegedly executed the impugned partition deed by perpetrating
fraud and misrepresentation in the year 2016. The plaintiff would
allege that the above person managed to execute the said partition
deed in such a manner that he got a share which was about three
times the share which he could have obtained considering the fact
that the gift deed executed in his favour by the mother of plaintiff's
father was only in respect of the 1/6 share to which she was entitled
over the suit property. In the above said partition deed, the mother
of the plaintiff is a signatory in her individual capacity as well as in
her capacity as the power of attorney holder of the plaintiff. The
brother and sister of the plaintiff are also signatories to that partition
deed. According to the plaintiff, he had executed a power of
attorney in favour of his mother at the request of the husband of the
1st defendant who insisted that a partition of the suit property could
be effected so that the shareholders could conveniently enjoy the
property. It is also stated that the above request was made by him
under the pretext that the allotment of his share would be limited to
the 1/6 share gifted to him by the mother of the plaintiff's father.
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The plaintiff has also raised a contention that his brother who had
affixed signature as a party to that partition deed, was not having
the mental capacity to enter into such a transaction. Thus, the
plaintiff would contend that the 1st defendant's husband (plaintiff's
father's brother) got executed the aforesaid partition deed by
perpetrating fraud and misrepresentation. After the death of the 1st
defendant's husband on 09.08.2020, the defendants 1 to 3 are said
to be the legal heirs who are entitled to inherit his property. It is the
further contention of the plaintiff that he came to know about the
misdeed so committed by the late husband of the 1st defendant only
when defendants 1 to 3 made an effort to measure out the property
and construct fencing enclosing a larger extent of property as their
shares. According to the plaintiff, the partition deed fraudulently
executed by the late husband of the 1st defendant was disclosed
only at the time when the relatives of the parties and the police
intervened in the dispute. It is also stated that, though earnest
efforts were made to settle the disputes at the intervention of
mediators, all those efforts were in vain. Based on the aforesaid
contentions, the suit has been instituted by the plaintiff. In the
application filed by the plaintiff along with the suit as I.A.No.1/2024,
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he had sought a temporary injunction restraining the respondents
therein (defendants 1 to 3 in the suit) from making constructions in
the suit property, committing encroachments exceeding their lawful
share and creating boundaries or executing documents relating to
the said property. On 06.04.2024, the learned Sub Judge passed an
order directing the parties to maintain status quo in respect of the
suit properties, which was later on vacated.
3. The respondents in I.A.No.1/2024 (defendants 1 to 3)
opposed the suit and application contending that there was
absolutely no bona fides in it. According to the respondents, the
plaintiff, who was a party to the partition deed under challenge
through his power of attorney holder, cannot now challenge the said
partition deed and raise a contention that it is vitiated by fraud and
misrepresentation. It is the further contention of the respondents
that the challenge raised by the plaintiff against the above partition
deed of the year 2016, is hopelessly barred by limitation. According
to the respondents, the draft of the aforesaid partition deed was
sent to the petitioner before getting it executed, and the
proceedings towards registration were initiated only after obtaining
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his concurrence. With the aforesaid contentions, the respondents
resisted the request for temporary injunction of the plaintiff.
4. The learned Sub Judge, after hearing both sides,
declined to grant the relief of temporary injunction prayed for by the
plaintiffs due to three reasons. Firstly, it is observed in the impugned
order that no injunction can be granted against the true owner.
Secondly, the court below found that the plaintiff has no personal
interest in the issue and hence he is not entitled for the temporary
injunction. The third reason stated by the learned Sub Judge for
declining temporary injunction is that the plaintiff has failed to plead
and substantiate that he is in possession of the suit property, and
that due to the act of the respondents his peaceful possession was
disturbed. Thus it is stated in the impugned order that no injunction
could be granted since the plaintiff is not in possession of the suit
property.
5. Heard the learned counsel for the appellant/plaintiff and
the learned counsel for the respondents (defendants 1 to 3).
6. The learned counsel for the appellant would contend
that the respondents are making hectic efforts to make permanent
constructions over a vast area of the suit property to the detriment
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of the lawful rights of the appellant, and hence it is highly necessary
to prevent them from proceeding further in that regard. According
to the learned counsel for the appellant, if the respondents succeed
in their attempt to make permanent constructions in the suit
property encroaching into those portions over which the appellant is
having right, it would cause irreparable damage and sufferings to
the appellant. It is pointed out that there is every chance of the
appellant getting a decree in his favour in the suit, and that he may
not be able to enjoy the fruits of the decree if the respondents
succeed in their plans of committing encroachments exceeding the
limited share to which they are entitled.
7. Per contra, the learned counsel for the respondents
would contend that the Court below has rightly observed that the
elements of prima facie case, balance of convenience and
irreparable injury are in their favour, and hence the appellant is not
entitled to have the relief of temporary injunction prayed for by him.
It is the further contention of the learned counsel for the
respondents that the respondents had made all preparations for the
construction of an industrial building at the portion of the suit
property, upon which they had obtained right from their
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predecessor-in-interest. The learned counsel for the respondents
would also contend that the appellant cannot challenge the partition
deed of the year 2016, in which his mother is also a signatory in her
individual capacity as well as in her capacity as the power of
attorney holder of the appellant. It is thus stated that there are
absolutely no grounds to doubt the genuineness of the partition
deed of the year 2016, which the appellant now challenges.
8. Admittedly, the suit property originally belonged to the
father of the appellant. After his death, the appellant's father's
mother got 1/6 share over the said property as per the relevant
provisions of the Muslim Law of Inheritance. It is the above said 1/6
share which she gifted in favour of the husband of the 1st
respondent. Though the share of the 1st respondent's husband was
only one sixth of the suit property, in the partition deed executed in
the year 2016, the share set apart to him is almost three times the
share which he could have obtained, if it was limited to the 1/6
share conveyed to him by his mother. However, the above said
partition deed does not contain any indication about the reason why
an enhanced share has been set apart to the 1st respondent's
husband. On the other hand, the recitals in the above said partition
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deed are to the effect that the share of the 1st respondent's
husband has its genesis from the gift deed executed by the
appellant's father's mother in his favour. If that be so, the 1st
respondent's husband cannot be expected to have allotment of any
share far exceeding in extent of the 1/6 share which was conveyed
to him by his mother. As there is nothing stated in the partition
deed as to the reason why an enhanced share is set apart to the 1st
respondent's husband, it is not possible to brush aside the challenge
raised by the appellant that the execution of the said partition deed
is vitiated by fraud and misrepresentation. True that, the appellant is
represented in that document through his mother (4th defendant in
the suit) as power of attorney holder. However, he would contend
that his mother is a pardanashin lady, and that the first defendant's
husband had managed to get that partition deed executed by taking
recourse to deceitful means. Anyway, it is a matter which cannot be
decided at this stage of the proceedings. But the fact remains that
the appellant has succeeded in bringing out an arguable and
debatable case. Needless to say, that the appellant has got a
prima facie case on this matter.
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9. While considering the elements of balance of
convenience and irreparable injury also, it is not possible to say that
the appellant is disqualified to get the temporary injunction prayed
for. This is because the records produced by the respondents itself
would reveal that they have started arrangements for making
permanent construction over a vast area of the suit property, that
too, after several months from the date of institution of the suit.
The site approval and building permit dated 23.04.2024 (Ext.B1)
would reveal that the respondents have sought approval of the
Alangad Grama Panchayath for the construction of a building of area
653.98 Sq.mts which almost covers the middle portion of the entire
property. If the respondents erect a permanent construction over
that portion of the suit property, it would definitely cause fetter for
the appellant in getting his due share set apart, if he ultimately
succeeds in getting a decree as prayed for in his suit. It is true that
the Court below is empowered to pass appropriate directions for
dismantling the building or to make other efficacious arrangements
in respect of the said building at the appropriate stage of final
decree proceedings or execution, if the appellant is able to win the
suit and get the allocation of share as claimed by him. However,
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such directions and arrangements are likely to cause loss and
hardships to both parties, and it is better to avoid such a situation.
Thus the elements of balance of convenience and irreparable injury
are also in favour of the appellant.
10. The observations of the learned Sub Judge in the
impugned order about the impossibility of granting injunction against
the true owner, the absence of personal interest of the appellant
over the suit property etc. are apparently baseless, since nobody
could dispute the right of co-ownership of the appellant over the suit
property. The Sub Judge seems to be under the impression that the
aspect of possession relevant in the case of temporary injunctions
against trespass has got applicability in every case, irrespective of
the right of a co-owner to seek interim injunction to prevent invasion
over his fractional share over the property. It appears that the
learned Sub Judge was under a total misconception about the right
of co-ownership of the appellant over the suit property. So also,
there is no basis for the observation of the learned Sub Judge that
the elements of prima facie case, balance of convenience and
irreparable injury favoured the respondents.
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11. Having regard to the rival contentions raised by the
parties, as well as the facts and circumstances of the case as borne
out of the records, it appears to be highly essential to ensure that
the present state of the suit property, as it exists now, has to be
preserved during the pendency of the suit. Therefore, the appellant
is entitled for a temporary injunction restraining the respondents
from making any change to the present state and condition of the
suit property.
In the result, the appeal stands allowed. The impugned order
of the learned Sub Judge is set aside. The respondents are
restrained by temporary injunction till the disposal of the suit from
making any change to the present state and condition of the suit
property.
(sd/-)
G.GIRISH, JUDGE
jsr
