Kerala High Court
Muhammed Aslam vs Shabana on 3 September, 2024
O.P.(C) No.968 of 2024 1
2024:KER:66786
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
OP(C) NO. 968 OF 2024
AGAINST THE ORDER DATED 02.03.2024 IN IA 3406/2023 IN OS
NO.390 OF 2023 OF PRINCIPAL MUNSIFF COURT, PALAKKAD
PETITIONER/PETITIONER IN IA NO.2029/2023 (I/2023)/RESPONDENT IN IA
NO.3406/2023 (6/2023)/PLAINTIFF IN OS NO.390/2023:
MUHAMMED ASLAM, AGED 73 YEARS
S/O MUHAMMED SHAREEF, KOZHIKKARA THERUVU,
NEAR KSRTC BUS STAND, PALAKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678014
BY ADVS.
SARATH M.S.
B.PREMNATH (E)
RESPONDENT/RESPONDENT IN IA NO.2029/2023 (I/2023)/PETITIONER IN IA
NO.3406/2023 (6/2023)/DEFENDANT IN OS NO.390/2023 :
SHABANA, AGED 25 YEARS
W/O ABDHUL SATHAR, PATTANI STREET,
PALAKKAD CITY POST, PALAKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678014
BY ADVS.
Jacob Sebastian
WINSTON K.V(K/147/2010)
ANU JACOB(K/1072/2013)
BHARATH KRISHNAN G.(K/000822/2023)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03.09.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) No.968 of 2024 2
2024:KER:66786
VIJU ABRAHAM, J.
.................................................................
O.P.(C) No.968 of 2024
.................................................................
Dated this the 3rd day of September, 2024
JUDGMENT
The above writ petition is filed challenging Ext.P8 order to the
extent it granted permission to the respondent to undertake construction
activities in the plaint B Schedule property.
2. Petitioner is the plaintiff in OS No. 390 of 2023 on the file
of the Munsiff Court, Palakkad and the respondent is the defendant in the
suit, which was filed for recovery of possession and injunction. It is
contended that the plaint schedule property vest with the petitioner through
Exts.A1 and A2 documents. The same assignors of the property created
Ext.A3 document in favour of one, Seenath and later by Ext.A4 the property
was gifted to the respondent. A petition was filed as I.A. No.2029 of 2023
seeking injunction and the defendant filed I.A.No.3406 of 2023 seeking
permission to do construction work of the first floor of the house which
situates in plaint B schedule property. Both the petitioners were heard
together and by Ext.P8 order rejected I.A.No.2029 of 2023 and allowed
I.A.No.3406 of 2023. It is aggrieved by the order in I.A. No. 2029 of 2023 an
appeal was preferred. It is challenging the order in I.A. No. 3406 of 2023
that the present Original Petition is filed. It is contended that Exts.P4 and P5
documents (A3 and A4) are ab initio void since it was executed after the
2024:KER:66786
execution of Exts.P2 and P3 (A1 and A2). Though the trial court admitted
that deep study is required for a proper adjudication, relief was granted to
the respondent as per Ext.P8.
3. Learned counsel for the respondent submits that no
prejudice is caused to the petitioner in as much as the existence of the
building in B schedule property has already been identified by the Advocate
Commissioner and further that sufficient riders have been put in the order to
protect the interest of the petitioner.
4. I have considered the rival contentions of both sides.
5. A perusal of Ext.P8 order reveals that the court has
entered into a finding that the petitioner has admitted that the respondent is
in possession of the plaint schedule property, though it is alleged that the
defendant had trespassed into the property. The court entered a finding that
the commissioner has reported that Plaint A schedule property is not
identifiable with its boundaries and the commissioner sought for assistance
of a surveyor and Village officials to identify the boundaries of plaint A
schedule property. The commissioner has clearly identified the existence of
a RCC house constructed in plaint B schedule which is a new building, the
construction work is not completed and the same has been assigned house
number and electric connection and the same has been constructed on the
strength of Ext.B4 approved building plan for construction of a two-storeyed
building. The court also entered a finding that the contention of the petitioner
that the whole share of property was assigned by way of Exts.A1 and A2
2024:KER:66786
documents appears to be incorrect and that the question of granting
injunction with respect to plaint A schedule of which plaint B schedule is also
a part can arise only after proper identification. It was found by the trial court
that the respondent is in possession of Plaint B schedule property and a new
building has been constructed therein after obtaining Ext.B4 approved
building plan for a two-storeyed residential building. Exts.B5 and B9 are the
tax receipts issued in favour of the respondent and Exts.B6 and B7 are the
receipts of mutation and possession certificate in the name of the
respondent, whereas Ext.B10 series, building tax receipts are also in the
name of the defendant. The request of the respondent was to grant
permission for construction of the first floor of the building for which Ext.B4
approved building plan was issued. The trial court in the said circumstance
found that the balance of convenience is in favour of the respondent and if
an interim order is not granted, irreparable injury will be caused to the
respondent and permitted the respondent to construct first floor of the house
which is situated in Plaint B schedule property, making it clear that she
cannot claim any right over the building in future on the strength of Ext.P8
order and in the event of the plaintiff succeeding in proving his title, the
defendant will have no option but to surrender vacant possession of the
Plaint B Schedule property. The court has considered and appreciated rival
contentions and the documents produced in support of the same and issued
Ext.P8 order allowing I.A No.3406 of 2023. The interest of the petitioner is
also protected in the said order.
2024:KER:66786
In the facts and circumstances of the present case, I find no
reason to interfere with Ext.P8 order to the extent it allowed I.A No. 3406 of
2023 and the Original Petition is accordingly dismissed.
Sd/-
VIJU ABRAHAM
JUDGE
cks
2024:KER:66786
APPENDIX OF OP(C) 968/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT DATED 3/8/2023 IN
O.S. NO.390/2023 ON THE FILE OF MUNSIFF
COURT, PALAKKAD
Exhibit P2 TRUE COPY OF EXHIBIT-A1 IN O.S.
NO.390/2023 ON THE FILE OF MUNSIFF COURT,
PALAKKAD (DOCUMENT DATED 11.12.2003
EXECUTED IN THE NAME OF PETITIONER)
Exhibit P3 TRUE COPY OF EXHIBIT-A2 IN O.S.
NO.390/2023 ON THE FILE OF MUNSIFF COURT,
PALAKKAD (DOCUMENT DATED 7.11.1992
EXECUTED IN THE NAME OF PETITIONER)
Exhibit P4 TRUE COPY OF EXHIBIT-A3 IN O.S.
NO.390/2023 ON THE FILE OF MUNSIFF COURT,
PALAKKAD (DOCUMENT NO.2563/2006 DATED
18.4.2006 EXECUTED IN THE NAME OF
SEENATH)
Exhibit P5 TRUE COPY OF EXHIBIT-A4 IN O.S.
NO.390/2023 ON THE FILE OF MUNSIFF COURT,
PALAKKAD (DOCUMENT NO.7833/2007 DATED
17.10.2007 EXECUTED IN THE NAME OF
RESPONDENT)
Exhibit P6 TRUE COPY OF THE I.A. NO.3406/2023 IN
O.S. NO.390/2023 ON THE FILE OF MUNSIFF
COURT, PALAKKAD DATED 17.11.2023
Exhibit P7 TRUE COPY OF THE COUNTER TO EXHIBIT-P6
I.A. NO.3406/2023 IN O.S. NO.390/2023 ON
THE FILE OF MUNSIFF COURT, PALAKKAD DATED
8.11.2023
Exhibit P8 TRUE COPY OF THE COMMON ORDER DATED
2/3/2024 IN I.A. NO.2029/2023 (1/2023) &
I.A. NO.3406/2023 (6/2023) IN O.S.
NO.390/2023 OF THE COURT OF THE MUNSIFF
(PRINCIPAL), PALAKKAD
