IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH DAY OF SEPTEMBER 2010/7TH ASWINA 1932 WP(C).No. 20011 of 2010 (O) --------------------------- PETITIONER(S): ------------- KOCHANNAM, AGED 78, W/O.LATE KOCHU DEVASSI, PULIKKOTTIL HOUSE PERINGAD DESOM, CHAVAKKAD TALUK. BY ADVS.SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL RESPONDENT(S): -------------- 1. GEBI, AGED 35 YRS., D/O.KUTTIKKADAN, KUNJIPPALU @ K.T.PAUL ANCHERY DESAM, OLLUR VILLAGE, TRISSUR TALUK 680 306. 2. KUNJIPPALU @ K.T.PAUL, ANCHERY DESAM, OLLUR VILLAGE, TRISSUR TALUK-680 306. R1 & R2 BY ADV. SRI.BASIL MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-09-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ------------------------- W.P (C) No.20011 of 2010 -------------------------- Dated this the 29th September, 2010 J U D G M E N T This litigation is an off-shoot of a matrimonial dispute between respondent No.1 and her husband, which ultimately ended in a legal separation among them. Respondent No.2 is the father of respondent No.1. Petitioner's son married respondent No.1. It is the case of the petitioner that when the marriage relationship between respondent No.1 and son of petitioner was in force, her son (husband of respondent No.1) availed a loan from respondent No.2 (his father-in-law) and as requested by respondent No.2, petitioner created a document in the name of respondent No.1 in respect of the suit property and house thereon as security for the loan. According to the petitioner, though a document in the style of sale deed was executed there was no intention to transfer title or possession of the property to respondent No.1. There was an agreement to re-convey the property to the petitioner once the loan is repaid. Petitioner continued to be in possession and enjoyment of the property residing in the W.P (C) No.20011 of 2010 2 house thereon. Petitioner filed O.S No. 1207 of 2005 in the court of learned Munsiff, Chavakkad for a decree directing respondent No.1 to re-convey the property to her and for prohibitory injunction. She filed I.A No.4133 of 2005 for an order of temporary injunction against respondents trespassing into and forcibly evicting her from the property. Respondents resisted the suit and filed I.A No.4133 of 2005 contending that there was no such loan transaction and that it was an outright sale in favour of respondent No.1. They also denied that there was any agreement to re-convey the property to the petitioner. Respondent No.1 claimed to be in possession and enjoyment of the property and its absolute owner. Respondents denied that petitioner has any right, title, interest or possession in the suit property. Respondents filed I.A No.1097 of 2006 against petitioner for an order of injunction against commission of waste in the property. 2. Learned Munsiff found that there is no prima facie case in favour of petitioner and vide Ext.P5, order dismissed I.A No. 4133 of 2005 and allowed I.A No.1097 of W.P (C) No.20011 of 2010 3 2006. Petitioner challenged the said common order by way of C.M.Appeals. But the appeals were dismissed as per Ext.P6, common judgment. Hence this writ petition challenging the common judgment. Learned counsel for the petitioner contends that there is sufficient evidence to show prima facie that petitioner is in possession of the suit property and residing in the house thereon. My attention is drawn to Exts A1 and A2 and the report of the Advocate Commissioner who stated that at the time of his inspection petitioner was seen staying in the building in the suit property. In the circumstances, the courts below went wrong in disallowing the prayer for injunction vide I.A No.4133 of 2005. Learned counsel for the respondents contended that evidence on record is consistent with contention of respondents that there was an assignment of the property in favour of respondent No.1 who is in possession and enjoyment of the said property and hence courts below are justified in dismissing I.A No.4133 of 2005 and allowing I.A No.1097 of 2006. There is little scope for interference invoking Article 227 of the Constitution of India, W.P (C) No.20011 of 2010 4 it is contended. 3. Petitioner relied on Exts.A1 and A2 in the courts below which are the photocopy of the assignment deed No.2498 of 1995 executed in favour of respondent No.1 and the photocopy of first page of the ration card in the name of petitioner. Ext.A2 was produced to show that even as on the date of the suit, petitioner had her ration card issued in the address of the house situated in the suit property. Respondents produced Exts.B1 to B11. 4. So far as the claim of possession of the suit property is concerned, Ext.A2 (its original is Ext.B9) would prima facie show that petitioner had assigned her right, title and interest and transferred possession of the property to respondent No.1. I must also bear-in-mind that the relief prayed for by the petitioner is a decree to direct respondent No.1 to re-convey the property to her. Respondents have also produced Exts.B7 to show that respondent No.1 is paying revenue for the suit property. On the evidence on record, the courts below found that respondent No.1 is prima facie in possession and enjoyment of the property in which, W.P (C) No.20011 of 2010 5 I find no reason to interfere invoking the supervisory power under Article 227 of the Constitution of India. 5. But, there is a contention for petitioner that she is residing in the house situated in the suit property. Ext.A2 is produced to substantiate that contention. Learned counsel for the petitioner contends that Ext.C1, the report of the Advocate Commissioner, shows that on the date of Advocate Commissioner inspected the property, petitioner was staying in the building in the said property. True, Advocate Commissioner has reported so, but respondents explained that respondent No.1 was residing in the house in the suit property and at a time she had been to her to paternal home petitioner filed the suit and took out the commission to show that respondent No.1 was not available in the house in the suit property. These are matters to be established in evidence. Learned counsel for the respondents contended that petitioner is residing with another son of her in the house belonging to that son in the property towards the south of the suit property. For that also, I do not find any acceptable material at this stage. In W.P (C) No.20011 of 2010 6 these circumstances, I consider it appropriate to permit petitioner to stay in the house in the suit property until disposal of the suit. While admitting this writ petition, I had issued an interim order on 28.6.2010 directing respondents not to forcibly evict petitioner from the building in the suit property. That order will remain force until the disposal of the suit. But it is made clear that in other respects the orders passed by the courts below will remain in force. Resultantly, this writ petition is disposed of in the following terms. (i) Subject to the modification made hereby, orders passed by the courts below do not call for any interference. (ii) Petitioner is permitted to stay in the building in the suit property until the disposal of the suit. (iii) Respondents are directed not to forcibly evict petitioner from the said building until the disposal of the suit. (iv) Petitioner shall not cause any obstruction to respondent No.1 enjoying the suit property (other than the building) until disposal of the suit. W.P (C) No.20011 of 2010 7 (v). Learned Munsiff is directed to expedite trial and disposal of the suit as well as the connected suit. Sd/- THOMAS P. JOSEPH, JUDGE ma /True copy/ P.A to Judge