Kerala High Court

Leelamma Poulose vs George Mathew on 11 March, 2025

FAO NO. 103 OF 2023              1



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         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

 TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946

                      FAO NO. 103 OF 2023

         ARISING OUT OF THE ORDER DATED 21.01.2023 IN
   I.A.NO.03/2022 IN O.S.NO.219/2022 OF IST ADDITIONAL
           SUBORDINATE JUDGE'S COURT,ERNAKULAM
APPELLANTS IN FAO/RESPONDENTS 1 TO 4 IN I.A.:

    1    LEELAMMA POULOSE
         AGED 80 YEARS
         W/O. MATHEW POULOSE (LATE), KUZHIYINJAL HOUSE,
         OPPOSITE CSEZ CHITTETHUKARA, CSEZ P.O.,
         PIN 682037, KAKKANAD VILLAGE, KANAYANNUR TALUK,
         ERNAKULAM DISTRICT; NOW RESIDING AT 1-WALNUT
         AVENUE, PELHAM, NEW YORK 10803
         UNITED STATES OF AMERICA.

    2    MINI POULOSE,
         AGED 52 YEARS
         WORKING ABROAD, D/O.MATHEW POULOSE (LATE),
         KUZHIYINJAL HOUSE, OPPOSITE CSEZ, CHITTETHUKARA,
         CSEZ.P.O., PIN 682037, KAKKANAD VILLAGE,
         KANAYANNUR TALUK, ERNAKULAM DISTRICT,
         NOW RESIDING AT RICHLAND, M149083, 6160 TAYLORS
         GROVE, UNITED STATES OF AMERICA.

    3    RINI POULOSE
         AGED 51 YEARS
         WORKING ABROAD, D/O.MATHEW POULOSE (LATE).
         KUZHIYANJAL HOUSE, OPPOSITE CSEZ, CHITTETHUKARA,
         CSEZ. P.O., PIN 682037, KAKKANAD VILLAGE,
         KANAYANNUR TALUK, EMAKULAM DISTRICT,
         NOW RESIDING AT 8621 -HEMPSTEAD AVENUE, MD20817,
         BETHESDA, UNITED STATES OF AMERICA.
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    4    MATHEW POULOSE @ JUNE
         AGED 49 YEARS
         S/O.MATHEW POULOSE (LATE), KUZHIYINJAL HOUSE,
         OPPOSITE CSEZ, CHITTETHUKARA, CSEZ.P.O., PIN
         682037, KAKKANAD VILLAGE, KANAYANNUR TALUK,
         ERNAKULAM DISTRICT, NOW RESIDING AT I-WALNUT
         AVENUE, PELHAM, NY10803, UNITED STATES OF
         AMERICA.

         BY ADVS.
         N.AJITH
         Joby Jacob Pulickekudy
         ANIL GEORGE(K/000347/1992)


RESPONDENTS IN FAO/PLAINTIFF & RESPONDENTS 5 & 6 IN I.A.:

    1    GEORGE MATHEW
         AGED 64 YEARS
         BUSINESS, S/O.MATHU @ MATHEW, KUZHIYINJAL HOUSE,
         OPPOSITE CSEZ, CHITTETHUKARA, CSEZ.P.O., PIN
         682037, KAKKANAD VILLAGE, KANAYANNUR TALUK,
         ERNAKULAM DISTRICT.

    2    ABDUL SALAM @ KATTA SALAM
         AGED ABOUT 50 YEARS
         BUSINESS, S/O.ISMAIL, MANATHU KUTTIKKATTU,
         POYYACHIRA, KAKKANAD.P.O., PIN682030
         KAKKANAD VILLAGE, KANAYANNUR TALUK,
         ERNAKULAM DISTRICT.

    3    NELSON.T.I
         AGED ABOUT 61 YEARS
         BUSINESS, S/O.ITTI AVARA, THURRUTHUMMEL HOUSE,
         OPPOSITE C SEZ, CHITTETHUKARA, CSEZ.P.O., PIN
         682037, KAKKANAD VILLAGE, KANAYANNUR TALUK,
         EMAKULAM DISTRICT.

         BY ADVS.
         FRIJO.K.S., R1
         SMITHA PHILIPOSE, R2
         LEGY ABRAHAM, R3
         BINCY JOSE(K/341/2015), R1
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         ARAVIND AJITH(K/231/2016), R1
         FADIYA FARZA V.A.(K/001978/2024), R1



     THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 11.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 FAO NO. 103 OF 2023                        4



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                               JUDGMENT

Dated this the 11th day of March, 2025

This appeal is filed challenging the order of temporary interim

injunction dated 21.01.2023 granted by the 1st Additional

Subordinate Judge, Ernakulam, in I.A.No.03 of 2022 in O.S.No.219

of 2022, which is a suit for partition.

2. Appellants herein were the respondents 1 to 4 in the I.A.

(defendants 1 to 4 in the suit) and respondents herein were the

petitioner and respondents 5 and 6 in the I.A. (Plaintiff and

defendants 16 and 17 in the suit). Parties are referred to hereinafter

as per their status in the O.S.

Brief Facts

3. The plaintiff is one among the ten children of Mathu @

Mathew and Eliyamma. The said couple owned two parcels of land

having a total extent of 1 Acre 75 cents of which 1 Acre and 40

cents of land is comprised in Sy.No.201/5 of Kakkanad Village and

35 cents of land is comprised in Sy.No.290/04 of the same Village.

They had assigned an extent of 1 Acre 45.500 cents and the

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balance property having an extent of 29.500 cents (11.94 Ares)

comprised in Re.Sy.No.445/7 of Kakkanad Village is the plaint

schedule property. Mathu @ Mathew and Eliyamma died intestate

on 23.11.1995 and 20.05.2014 respectively. The plaint scheduled

property includes an old building which had been converted into a

residential building having an area of 10000 square feet with 10 bed

rooms by the plaintiff and defendant Nos.8, 10, and 11 as per the

direction of their parents. The plaint schedule property is in the joint

possession of the parties except defendant Nos.16 and 17 who are

nearby residents. The plaintiff has now learnt that the 1 st defendant

with the consent and concurrence of defendants 2 to 4, has orally

entrusted defendants 16 and 17 to assign the plaint schedule

property under the guise of a settlement deed bearing

No.1449/2002 of SRO, Thrikkakara. With the intention to defeat the

other co-owners, the 1st defendant has appointed some persons for

the sale of plaint schedule property along with the residential

building situated therein. The plaintiff thus filed I.A.No.03 of 2022 in

the suit and sought the issuance of an interim injunction under

Order 39 Rule 1 of the CPC restraining the defendant's inter alia

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from alienating, and encumbering the plaint schedule properties. A

prayer to restrain defendant Nos.16 and 17 from trespassing into

the plaint schedule property was also sought.

4. In the counter affidavit filed to the said I.A. by defendants 1

to 5, they put forth a different version. They contended that Mathu

@ Mathew and Eliyamma had assigned their entire properties to

their children before their deaths. Hence, there exists no partible

property. The suit for the partition itself is thus not maintainable. The

persons sought to be injuncted from trespassing into the property

are the caretaker and the neighbour.

5. The court below drew up three points for consideration and

parties proceeded to tender evidence. Exts.A1 to A14 series were

marked on the side of the plaintiff and Exts.B1 to B 19 was marked

from the part of the defendants. The commission report was marked

as Ext.C1.

6. After hearing both sides, the learned Sub-Judge issued an

order of temporary injunction, inter alia, finding that the plaintiff has

made out a prima facie case and that it would cause irreparable loss

and injury to the plaintiff if an order of temporary injunction, as

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sought, is not granted. The balance of convenience was also found

to be in favour of the plaintiff. The said order of the learned Sub-

Judge is challenged in this appeal by defendants 1 to 4.

7. Heard Sri.Joby Jacob Pulickakudy, Advocate for the

appellants/defendants Nos.1 to 4 and Sri.K.S. Frijo, Advocate for

R1/plaintiff, Smt.Smitha Philipose, Advocate for R2/defendant No.16

and Smt.Legy Abraham, Advocate for R3/defendant No.17.

8. Arguments of defendants 1 to 4 in brief :

• The Sub Court erred in allowing the I.A. for a temporary

injunction filed by the plaintiff.

• The contentions put forth by the plaintiff were untenable and

he had no consistent case at all, as would be revealed from

the pleadings and documents produced.

• There was no partible property as Mathu @ Mathew and

Eliyamma had during their lifetime assigned the entire

property. There was nothing left to be partitioned. Thus no

legal right existed in the plaintiff to even maintain a partition

suit. This aspect was lost sight of by the learned Sub Judge.

• The learned Sub Judge failed to appreciate that the exhibits

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relied on by the plaintiff were self-serving documents and

would not substantiate his contentions.

• The plaintiff had no knowledge even regarding the extent, lie

or description of the property that he sought to be partitioned.

• The Sub-Judge ought to have found that the suit is only

experimental in nature and ought not to have issued the

temporary injunction.

• The injunction was granted without proper application of mind

to the contentions put forth by defendants 1 to 4/respondents

1 to 4 in their counter affidavit.

• No prima facie case had been made out, and the learned Sub

Judge erred in overlooking the trite law that if a temporary

injunction is granted in favour of the plaintiff in the absence of

a prima facie case, the defendants will suffer an irreparable

loss that cannot be compensated in money. Reliance is placed

on the judgment in Bhagawantibai and others v. Rajendra

Kumar (2022 KHC 4242)

• No prayer for recovery of possession had been made in the

suit. Reliance is placed on the dictum laid down in Chandran

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v. Meenakumari [2024 (4) KHC 597] wherein it was held that

a mere suit for partition without a prayer for recovery of

possession of property, which is partitioned and set apart to

various sharers cannot be maintained when the respective

sharers have taken possession of their respective shares. ;

• The Sub Court overlooked the dictum laid down in Omana

Amma and another v. Thankamony Amma and others

[2020(1)KHC 790] wherein it had been held that in view of

Section 52 of the Transfer of Property Act, 1882 when a suit is

laid for partition over certain properties, the principle of lis

pendens comes into operation and any subsequent

transaction by any of the parties would be on no consequence

and would not affect the right of others.

• The Sub Court should not have issued the temporary

injunction taking note of Section 52 of the Transfer of Property

Act as it does not really serve any purpose if the plaintiff

moves an application for an interim injunction seeking

restriction on rights of alienation over suit properties by

defendants.

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• It is trite that when the description of boundaries is clear and

within the four boundaries stated in the document more extent

of the land than shown in the document is found to be in

possession of a party, the mere fact that there is a larger

extent shown in the document by itself would not deprive the

said party to get title to the excess extent. Reliance is placed

on the dictum in Chandrakumar v. Narayanan Bahuleyan

and another [2011 (2) KHC 884].

• Though not an inflexible rule, it is settled that generally when

there is a conflict between area and boundary, the boundary

will prevail. Reliance is placed on the dictum in Kamalamma

v. Shibu [2024 (3) KHC 547].

• The suit itself was bad for suppressio veri and suggestio falsi

and hence the plaintiff was not entitled to any equitable

remedy.

• The order of temporary interim injunction granted is not

sustainable in law and is fit to be set aside.

9. Arguments of plaintiff & defendants 16 & 17 :

10. Per contra, the learned counsel appearing for the plaintiff

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submitted that the order of the learned Sub Judge granting

Temporary injunction was valid, proper and in accordance with law.

The same did not call for any interference. The said order was not

mechanically granted. A valid appreciation of the evidence put forth

by both sides had been carried out before issuing the temporary

injunction. The Sub Court had unequivocally concluded that the

plaintiff/petitioner had made out a prima facie case in his favour.

Balance of convenience and irreparable loss and injury that would

be occasioned to him if the plaint schedule property is alienated or

encumbered by the appellants/defendants 1 to 4 was found and

only thereafter the temporary injunction was granted. Hence there

is no cause or reason to interfere with the same.

Discussion and Analysis:

11. The principles governing the grant of a temporary

injunction are trite and settled. The criteria have been pithily laid

down by the Supreme Court in Kashi Math Samsthan and another

v. Shrimad Sudhindra Thirtha Swamy and another (AIR 2010 SC

296) as follows:

"In order to grant an order of injunction, the party who

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seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well-settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction is granted."

(Emphasis added)

The scope and ambit of the term "prima facie case" was examined

and explained in Martin Burn Ltd. v. R.N. Bangerjee (AIR 1958

SC 79) . The Supreme Court had observed:

"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed while determining whether a case is prima facie one or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence." (Emphasis added)

Thus, the existence of a bona fide dispute must be satisfied, and the

court must find that the applicant is likely entitled to the relief

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claimed.

12. The above-mentioned mandates as prerequisites for

granting an injunction were further extended by the addition of one

more element by the Supreme Court in Mandali Ranganna and

others v. T. Ramachandra and others (AIR 2008 SC 2291). It was

held that while considering an application for a grant of injunction,

the Court will not only consider the basic elements in relation

thereto, viz., the existence of a prima facie case, the balance of

convenience, and irreparable injury, but it must also consider the

conduct of the parties. Thus grant of injunction is an equitable relief.

13. It can thus be summarised that before granting a

temporary injunction, the following considerations are generally

required to be satisfied:

(i) There is a prima facie case in favour of the plaintiff

and against the defendant.

(ii) That irreparable injury is likely to be caused to the

plaintiff which cannot be compensated for in terms of

money.

(iii) That the balance of convenience lies in favour of the

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plaintiff and against the defendant.

(iv) Conduct of the plaintiff as well as equity, justify the

grant of an injunction.

14. Having thus reminded myself of the law governing the

subject, I proceed to consider whether the said mandates had been

satisfactorily met while the order impugned in this appeal was

issued.

15. Both sides have made detailed submissions concerning

facts based on their respective documents and pleadings. The

learned counsel for the defendants 1 to 4, Sri.Joby Jacob

Pulickakudy has, pointing to the documents produced before the

Sub Court, strenuously contended that there is no partible property

left and that the prayer for partition made in the suit is

unsustainable. He points to sale deed No.795/1954 produced as

Ext.A1 and contends that what Mathu @ Mathew had was an extent

of 1.40 acres of garden land in Sy.No. 201/5 and 35 cents of Nilam

in Sy.No.290/4. The garden land and nilam are separately situated

and are two different parcels of land. The learned counsel then

proceeded to explain how the land had been through various deeds

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assigned and conveyed to his children and grandchildren including

the plaintiff and his wife Smt. Lilly. It is contended that the entire

plaint schedule property of 28.500 cents had been transferred vide

Ext.A3 settlement deed bearing No. 1449/2002. Reliance is also

placed on Exts.B13 tax receipt, B14 possession certificate and B15

police complaint to show that possession and ownership had

already vested in the 1st defendant. It is also contended that the

valuation of the property is around 3 crores and 1/10th of the share

claimed would come to Rs.60 lakhs and that his client is amenable

to pay the same to the plaintiff to which no favourable response had

been received. It is also vehemently contended by Sri. Joby Jacob

Pulickakudy relying on the counter affidavit and the documents

produced as Exts.B1 to B19 that the detailed counter affidavit filed

by defendants 1 to 4 and documents produced had been overlooked

by the Sub Court while passing the impugned order and thus the

order of temporary injunction granted and impugned in this appeal is

not at all sustainable. On the other hand, the learned counsel for the

plaintiff refuted the contentions put forth relying on the plaint

averments and on Exts.A1 to A14. It is submitted that there exists

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partible land and since no measurement of the entire land has been

done it cannot be stated that no partible land exists. It is his specific

case that the mere inclusion of a name in the revenue records and

placed on Ext.A3 settlement deed No. 1449/2002 is defended

pointing out that vide the said settlement deed, the executant only

transfers a part of property conveyed by Ext.A2 to his wife. Thus

only half a share of 28.500 cents is acquired by Smt. Leelamma (1st

defendant) by way of Ext.A3. The house in the plaint schedule

property was constructed with the contribution from the plaintiff too.

The plaintiff has an emotional and sentimental attachment to the

house situated in the plaint schedule property which, the defendants

1 to 4 who are based abroad would not possess. Though the

execution of the Ext.A3 document was not known during the

relevant time, there is no need to seek cancellation of the Ext.A3

document as the same is only to be ignored as of right.

16. I do not propose to consider the inter se merit of the

above arguments put forth by both sides based on the documents

produced and facts narrated in the pleadings. Suffice it to say that I

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am convinced from the pleadings and the documents that the

plaintiff has made out a prima facie case for maintaining the suit. I

find merit in the contention of the counsel for the plaintiff that all

factual questions that had been put forth are to be thrashed out and

decided in the trial that is to ensue. If in the meanwhile, third parties

are inducted to the property by selling or encumbering the plaint

schedule property, irreparable loss and injury will be occasioned to

the plaintiff. I find that the balance of convenience clearly lies in

favour of retaining the injunction that has been granted. With regard

to the application of lis pendens over any subsequent transactions,

as contended by defendants 1 to 4, it is well settled that the court

has ample power to grant an injunction restraining pendente lite

transfer in a fit and proper case, as held in Ramakant Ambalal

Chok v. Harish Ambalal Choksi [(2024) KLT OnLine 2866 (SC)]. It

is fit and proper to leave all questions open to be decided by the

Sub Court during the trial.

Conclusion:

In view of the above discussion, this appeal is dismissed.

No costs. It is clarified that no opinion has been expressed on the

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merits of the matter and all questions are left open for the parties to

agitate and prove during trial. Taking note of the fact that some of

the parties involved are senior citizens, it is deemed proper to direct

the learned 1st Additional Sub Judge, Ernakulam, to dispose of the

suit expeditiously, at any rate within 6 months from the date of this

judgment.