Kerala High Court

Muthukumar vs Jayaprakasan on 21 November, 2024

                                                            2024:KER:87531


FAO No.125 of 2024
                                   -1-



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                     THE HONOURABLE MR. JUSTICE G. GIRISH
        THURSDAY, THE 21ST DAY OF NOVEMBER 2024/30TH KARTHIKA,
                                  1946
                             FAO NO. 125 OF 2024
        AGAINST THE JUDGMENT DATED 16.08.2024 IN CMA NO.50 OF
        2024 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD
             ARISING OUT OF THE ORDER DATED 04.04.2024 IN
             OS NO.157 OF 2023 OF MUNSIFF COURT, CHITTUR

APPELLANT/RESPONDENT/DEFENDANT:

          MUTHUKUMAR
          AGED 66 YEARS, S/O. KRISHNAN,
          CHERINKAL VEEDU, KARIPPALI,
          PATTANCHERRY VILLAGE, CHITTUR TALUK,
          PALAKKAD DISTRICT, PIN - 678532

        BY ADVS.
        G.HARIHARAN
        PRAVEEN.H.
        K.S.SMITHA
        B.R.SINDU
        V.R.SANJEEV KUMAR
        V.ROHITH
        AFNA V.P.
        REMYA MURALI
RESPONDENT/PETITIONER/PLAINTIFF:

          JAYAPRAKASAN
          S/O PARAMESWARAN, VILAYANNUR AMSOM,
          VILAYANNUR P.O., ALATHUR TALUK,
          PALAKKAD DISTRICT, PIN - 678 671

     THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR
ADMISSION ON 21.11.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                                         2024:KER:87531


FAO No.125 of 2024
                                       -2-




                                G. GIRISH, J.
                        ------------------------------
                             FAO No.125 of 2024
              ------------------------------------------------------
              Dated this the 21st day of November, 2024

                                 JUDGMENT

This appeal is preferred against the judgment dated

16.08.2024 of the District Court, Palakkad in Civil Miscellaneous

Appeal No.50 of 2024. The aforesaid CMA was preferred before

the learned District Judge by the plaintiff in O.S.No.157 of 2023

on the files of the Munsiff's Court, Chittur, aggrieved by the

dismissal of a temporary injunction application filed by him as

I.A.No.1174 of 2023. For the sake of convenience, the parties are

referred hereinafter as plaintiff and the defendant respectively.

2. The plaintiff approached the Trial Court seeking the

relief of permanent prohibitory injunction against the defendant

from interfering with his possession over the suit property. The

contention of the plaintiff was that he obtained the suit property

by virtue of Jenm title deed Nos.1701/2006 and 1702/2006 and

thereafter remained in absolute possession and enjoyment of the

said property. According to the plaintiff, he has been conducting 2024:KER:87531

an automobile workshop in the suit property for the past 18

years. The reason for the institution of the suit before the Trial

Court is stated to be the alleged attempt of the defendant on

30.12.2022 to trespass upon the plaint schedule property and to

interfere with his possession over the suit property. It is further

stated that the defendant had threatened to obtain forceful

possession of the suit property and also issued a lawyer's notice

calling upon the plaintiff to vacate the property. At the time of

institution of the suit, the learned Munsiff granted an ad hoc

interim injunction restraining the defendant from interfering with

the possession of the plaintiff over the suit property.

3. The defendant appeared and contended that the suit

property belonged to him by virtue of sale deed No.1953/2005 of

the Sub Registrar's Office, Koduvayur executed by one Sulekha

Umma. The defendant further contended that the title deeds

relied on by the plaintiff were fabricated documents. According to

the defendant, the boundaries mentioned in the title deeds relied

on by the plaintiff, were incorrect. It is also stated that the

defendant permitted the plaintiff to conduct an automobile 2024:KER:87531

workshop in the suit property. According to the defendant, the

permission to conduct automobile workshop in the suit property

was accorded to the plaintiff on 01.12.2015. Before that, the

defendant was said to be conducting the automobile workshop

there. It was thus pointed out that the plaintiff had no right to

seek injunction against the defendant, who is the true owner of

the suit property.

4. At the application of the plaintiff, an Advocate

Commissioner deputed by the Trial Court conducted a local

inspection in the suit property and filed a Commission Report and

Sketch, which were marked as Exts.C1 and C1(a) in the

proceedings before the Trial Court. The Advocate Commissioner

had reported about the existence of an automobile workshop

conducted by the plaintiff in the suit property.

5. The learned Munsiff, after hearing both sides and

evaluating the materials on record, arrived at the finding that the

plaintiff was not entitled for the relief of injunction as against the

defendant, who is the true owner of the suit property. With the

above observation, the learned Munsiff dismissed the temporary 2024:KER:87531

injunction application filed by the plaintiff as I.A.No.1174/2023.

6. In the appeal before the District Court as CMA

No.50/2024, the learned District Judge, after going through the

Commission Report and rough Sketch marked as Exts.C1 and

C1(a), observed that the aforesaid documents clearly indicate that

the plaintiff has been conducting a two-wheeler workshop in the

building situated in the suit property. It was further observed by

the learned District Judge in the impugned judgment that the

documents produced by the plaintiff showed that the building

situated in the suit property is aged about 15 years and that it

could be safely concluded that the plaintiff has been running the

automobile workshop business in the suit property for the last 18

years. After a meticulous analysis of the findings of the Advocate

Commissioner about the suit property and its boundaries, and

comparing it with the boundaries mentioned in the title

documents relied on by the parties, the learned District Judge

observed in the impugned judgment that without a measured

sketch in respect of the description of the properties, it is not

possible to locate the property as per the boundaries, and that it 2024:KER:87531

has to be taken that there is mistake in mentioning the

boundaries in the documents. According to the learned District

Judge, all the confusions in respect of the boundaries of the

property over which the plaintiff and defendant are staking claim

could be remedied only by taking out a survey commission and

understanding the actual situation of each property as per the

document. It is observed by the learned District Judge that, if the

present situation of the suit property is altered before getting

such a report, it would affect the entire scheme of the suit. Thus,

for the purpose of maintaining the state of equilibrium in the suit

property, and for preserving its present condition, the learned

District Judge passed the temporary injunction order restraining

the defendant from interfering with the peaceful occupation of the

plaint schedule property and business being conducted in the said

property by the plaintiff, till the disposal of the suit.

7. The notice on this appeal has been duly served on the

respondent/plaintiff. He did not choose to appear or prefer any

counter.

8. Heard the learned counsel for the appellant/defendant.

2024:KER:87531

9. The learned counsel for the defendant would submit

that Ext.B1 document produced by the defendant before the Trial

Court, leaves no room for any doubt about the title of the

defendant over the suit property. It is the further argument of the

learned counsel for the appellant that there is absolutely no need

for a measurement of the property with the help of a surveyor,

and the preparation of a sketch, since the descriptions in the title

document relied on by the defendant tally with the present state

of the suit property. Thus, it is argued that the learned District

Judge went wrong in granting the temporary injunction against

the defendant.

10. The fact that the plaintiff is conducting an automobile

workshop in the suit property is not disputed by the defendant. It

is true that the plaintiff claims right over the suit property on the

basis of a contention that the said property has been obtained by

him by virtue of Exts.A1 and A2 documents, which according to

the defendant are fabricated records. However, for the eviction of

the plaintiff from the suit property and getting possession of the

same, the defendant has to take recourse to the procedures 2024:KER:87531

established by law. Though the defendant claims to be the true

owner of the suit property, he is not expected to take possession

of the said property by forcefully evicting the plaintiff without

adopting the procedure established by law. In that view of the

matter, the temporary injunction order granted by the learned

District Judge is liable to be modified by incorporating a clause

that the interdict contained thereunder would come into play only

for the acts of the defendant to obtain forceful possession of the

suit property otherwise than due process of law. Subject to the

above modification, the judgment rendered by the learned District

Judge is liable to be confirmed.

In the result, the appeal is disposed of as follows:

The defendant (appellant herein and the respondent in

CMA No.50 of 2024) is restrained by a temporary injunction till

the disposal of the suit from interfering with the possession of the

plaint schedule property by the plaintiff through any manner

otherwise than due process of law.