IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 27459 of 2010(O) -------------------------------------- CMA.16/2009 of ADDL. DISTRICT COURT, PARAVUR OS.88/2009 of MUNSIFF COURT,ALUVA .................... PETITIONER(S): ---------------------- LEELAMMA, AGED 57 YEARS, W/O.VARGHESE, CHITTIYASSERY HOUSE, MARANGATTUPILLY, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): -------------------------- 1. NAIJY, AGED 36, W/O.VARGHESE, VALANCHERRY HOUSE, NAYATHODE P.O., ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. 2. VARGHESE, AGED 43, S/O.DEVASSY, VALANCHERRY HOUSE, NAYATHODE P.O., ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, REPRESENTED BY THE IST RESPONDENT. PIN. 683 572. ADV. SRI.PAUL K.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C. NIO.27459/2010 APPENDIX PETITIONERS EXHIBITS. P1:- COPY OF THE EGISTEED SALE DEED NO.4068/2005 DTD. 2.8.05. P2:- COPY OF THE REGISTERED SALE DEED DTD. 31.8.1995 BY ESTHAPPANOS AND OTHERS IN FAVOUR OF RAJU @ THOMMI. P3:- COPY OF THE BASIC TAX RECEIPT DTD. 31.1.2006 ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER, CHENGAMANAD. P4:- COPY OF THE BASIC TAX RECEIPT DTD. 22.5.2008 ISSEUD TO THE PETITIONER BY THE VILLAGE OFFICER, CHENGAMANAD. P5:- COPY OF THE BASIC TAX RECEIPT DTD. 8.4.09 ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER, CHENGAMANAD. P6:- COPY OF THE BASIC TAX RECEIPT DTD. 6.4.2010 ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER, CHENGAMANAD. P7:- COPY OF THE LOCATION SKETCH OF THE PROPERTY OF RAJU@ THOMMI. P8:- COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, CHENGAMANAD TO RAJU @ THOMMI. P9:- COPY OF THE PLAINT IN OS. NO.81/2009 ON THE FILE OF THE MUNSIFF COURT, ALUVA. P10:- COPY OF THE ORDER DTD. 16.3.09 IN IA. 492/2009 IN IS. NO.81/09 OF THE MUNSIFF COURT, ALUVA. P11:- COPY OF THE WRITTEN STATEMENT FILED BY ESTHAPPANOS AND OTHERS IN OS. 81/2009 ON THE FILE OF THE MUNSIFF COURT, ALUVA. P12:- COPY OF THE REPOT DTD. 11.3.2009 IN OS. 81/2009 ON THE FILE OF THE MUNSIFF COURT. P13:- COPY OF THE REGISTERED SALE DEED DTD. 27.2.2009 EXECUTED BY ESTHAPPANOS TO 2ND RESPONDENT. P14:- COPY OF THE PLAINT IN OS. NO.88/2009 BEFORE THE MUNSIFF COURT, ALUVA. P15:- COPY OF THE COMMISSION REPORT DTD. 17.3.2009 IN OS. 88/2009 BEFORE THE MUNSIFF COURT, ALUVA. P16:- COPY OF THE ORDER DTD. 31.3.09 IN IA. 545/2009 IN OS. NO.88/2009 OF THE MUNSIFF COURT, ALUVA. P17:- COPY OF THE JUDGMENT DTD. 22.6.2010 IN CMA. 16/2009 OF THE COURT OF THE ADDITIONAL DISTRICT JDUGE, N.PARAVUR. TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== W.P(C) No.27459 of 2010 ==================================== Dated this the 28th day of September, 2010 J U D G M E N T Writ Petition is in challenge of Ext.P17, judgment dated 22.06.2010 in C.M.A. No.16 of 2009 of the court of learned Additional District Judge, North Paravur confirming Ext.P16, order dated March 31, 2010 on I.A. No.545 of 2009 in O.S.No.88 of 2009 of the court of learned Munsiff, Aluva. Respondents claiming title and possession over 20.57 cents of Chengamanad Village instituted the suit for a decree for prohibitory injunction to restrain petitioner from trespassing into the said property and for recovery of damages. They also sought an order of temporary injunction until disposal of suit vide I.A. No.545 of 2009. Petitioner resisted the suit and application contending that description of the suit property is not correct and that the suit property takes in property belonging to him as per Ext.P1, assignment deed dated 02.08.2005. Petitioner claimed that he is in possession and enjoyment of the said property. Petitioner had filed O.S. No.81 of 2009 against predecessors-in-interest of respondents claiming that 56.956 cents in R.S. Nos.39/2 and 39/3 (as stated in the plaint W.P(C) No.27459 of 2010 -: 2 :- schedule) of the same Village belonged to her as per Ext.P1, sale deed dated 02.08.2005. In that case petitioner was successful in getting an order of temporary injunction against predecessors-in- interest of respondents trespassing into the said property. Learned Munsiff while considering I.A. No.545 of 2010 in O.S. No.88 of 2009 found a prima facie case in favour of respondents and granted injunction as prayed for. That order was confirmed by the learned Additional District Judge vide Ext.P17. It is contended by learned counsel for petitioner that going by Exts.P1 and P2, assignment deed in favour of petitioner and its prior document, the 56.956 cents purchased by petitioner as per Ext.P1, assignment deed lie contiguous bounded by property of respondents Nos.2 and 3 in O.S.No.81 of 2009 on the west and that on all other sides it is properties belonging to other persons and hence there is no question of respondents acquiring the suit property as stated in Ext.P13, assignment deed in favour of respondent No.2. Learned counsel also invited my attention to the relevant documents as also copy of report of Advocate Commissioner in O.S. No.81 of 2009. In response it is contended by learned counsel for respondents that even as per the averments in the plaint in O.S. No.81 of 2009 entitlement of W.P(C) No.27459 of 2010 -: 3 :- petitioner is only for 56.956 cents in R.S.Nos.39/2 and 39/3 and going by Ext.P2, assignment deed there was no question of petitioner acquiring 56.956 cents in R.S. No.39/3 (alone) which indicated that property purchased by petitioner is not lying contiguous as reported by the Advocate Commissioner also in O.S.No.88 of 2009. Learned counsel states that it is after consideration of the materials on record that courts below found in favour of respondents and granted temporary injunction against petitioner. According to the learned counsel there is no scope for interference under Article 227 of the Constitution. 2. True, supervisory jurisdiction under Article 227 of the Constitution is to be exercised when the subordinate court has overstepped its jurisdiction or has illegally exercised the jurisdiction or has acted perversely. In the circumstances, this Court in exercise of its supervisory power is to correct the mistakes or errors committed by the subordinate courts. My endeavour in this case is to find whether such situation arises on the facts of the case. 3. It is not disputed that the properties originally belonged to the common owners – Esthappanos and his children who are defendants in O.S. No.81 of 2009. Esthappanos and W.P(C) No.27459 of 2010 -: 4 :- children executed Ext.P2, assignment deed dated 31.08.1995 in favour of one Thommy in respect of 60 cents constituted by 17 cents belonging to the children in R.S.No.39/2 and 43 cents belonging to Esthappanos in R.S.No.39/3. The said Thommy executed Ext.P1, assignment deed in favour of petitioner on 02.08.2005. No doubt going by the description in Ext.P2 it would appear that Esthappanos had assigned only 43 cents in R.S. No.39/3 in favour of Thommy as per Ext.P2 and hence Thommy could convey to the petitioner as per Ext.P1 only 43 cents in R.S. No.39/3. Prima facie there is some merit in the contention advanced by leaned counsel for respondents. But it is seen from Ext.P1 that it is also stated therein that on measurement of the property it was found that the 56.956 cents is found to be comprised in R.S. No.39/3 as per the location sketch and possession certificate issued by the authorities concerned. In other words it is with the recital that the entire 56.956 cents is comprised in R.S.No.39/3 that said property was assigned by Thommy in favour of petitioner as per Ext.P1. I must also bear in mind that in the schedule to Ext.P1, boundary of the said 56.956 cents is described as property of children of Esthappanos on the west and properties of third parties on all other sides. If that be W.P(C) No.27459 of 2010 -: 5 :- so, going by Ext.P1, Esthappanos could have no property remaining after assignment of 56.956 cents and what was left with the children was the property on the west of the 56.956 cents covered by Ext.P1 which could only be in R.S.No.39/2. This is the case set up by petitioner as plaintiff in O.S. No.81 of 2009 and as the defendant in O.S.No.88 of 2009. In tune with that is the report of Advocate Commissioner in O.S. No.81 of 2009 a copy of which is produced along with this Writ Petition where it is stated and shown that the 56.956 cents lying contiguous as one plot. I must also bear in mind that except the boundary description in Ext.P13, the assignment deed in favour of respondent none of the other documents would sow that property belonging to the petitioner is not lying contiguous. 4. Equally vehement is the case set up by respondents. For, as per Ext.P13, assignment deed in favour of respondent No.2 he has been assigned 20.750 cents in R.S. No.39/3 and that is bounded by property belong to the petitioner on the east and south in which case as reported by the Advocate Commission in O.S. No.88 of 2009 property of petitioner cannot lie contiguous and should be on either sides of property of respondent No.2 conveyed to him by Esthappanos and children as per Ext.P13, W.P(C) No.27459 of 2010 -: 6 :- assignment deed. Thus going by the respective documents produced by parties it would appear that there is some controversy regarding the survey number in which parties own property and even its exact lie. In such a situation the controversy can be settled only after a full-fledged trial of the cases. Learned counsel has a contention that there was some malpractice allegedly indulged in by petitioner with the assistance of authorities concerned regarding correction of survey numbers concerning which some vigilance proceedings are pending. I make it clear that it is a mater which the trial court has to consider at the appropriate stage. The above being the situation it was not proper for the courts to have acted merely on the documents produced by respondents alone to hold that property of petitioner lies on the south and east of 20.750 cents belonging to the respondents as per Ext.P13. I am afraid finding entered by the courts below is premature. As I stated above it requires evidence, if necessary by survey and measurement of the properties as well to ascertain which of the versions - whether it is the claim of petitioner or respondents that should prevail. In such a situation the proper course open to the courts below was to direct parties maintain the present condition of the W.P(C) No.27459 of 2010 -: 7 :- suit properties In that view of the matter I am inclined to hold that the courts below were not justified in finding in favour of possession claimed by respondents and granting order of temporary injunction. I make it clear that whatever observations courts below have made or in this Writ petition shall not influence the disposal of the suits. Resultantly, Writ Petition is disposed of in the following lines: (i) The finding entered by the courts below are set aside and left to be decided by the trial court after trial of the cases. (ii) Parties hereto are directed to maintain present condition of the suit property. (iii) Petitioner herein is directed to maintain the present condition of the property scheduled in O.S.No.81 of 2009 as well. (iv) If so advised it will be open to the parties or any of them to request joint trial of O.S. Nos.81 W.P(C) No.27459 of 2010 -: 8 :- and 88 of 2009 which are pending in the same court. (v) In case there is any crop in the disputed properties (in either suits) it will be open to the parties or any of them to request learned Munsiff to permit them/him to harvest the crops in the presence of an Advocate Commissioner or other Officers of the court and deposit the sale proceeds in court or in a Nationalised Bank as the court directs so that the sale proceeds or respective share in it can be given to the successful party. THOMAS P. JOSEPH, JUDGE. vsv