IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 OP(C).No. 1075 of 2010(O) ----------------------- CMA.22/2010 OF SUB COURT, IRINJALAKUDA OS.662/2010 OF MUNSIFF COURT, IRINJALAKUDA ................ PETITIONER : ------------------ BIJU, AGED 37 YEARS, S/O.POOLAN VEETIL THOMAS, POOCHUNNYPPADAM DESOM, CHOVOOR VILLAGE, THRISSUR TALUK. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------- 1. NIXON, S/O.CHONEDATH XAVIER, PARAKKOTTUKARA DESOM, MURIYAD VILLAGE, MUKUNDAPURAM TALUK. 680 001. 2. PAULOSE, S/O.VARKEY, CHENNEKKAT, IKKARANADU NORTH VILLAGE, KOLENCHERRY DESOM, ERNAKULAM DISTRICT. 682 311. R2 BY ADV. SRI.K.R.KURUP SRI.C.R.VINOD KUMAR SRI. VINUCHAND BY ADV. SRI. SIKKY S., ADVOCATE COMMISSIONER THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 1075 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT IN O.S. NO. 662 OF 2010 DATED 27/5/2010 ON THE FILE OF THE MUNSIFF COURT, IRINJALAKUDA. EXT.P2 : COPY OF THE ORDER PASSED IN IA NO. 1653 OF 2010 IN O.S. NO. 662 OF 2010 DATED 17/6/2010 ON THE FILE OF THE ADDL. MUNSIFF COURT, IRINJALAKUDA. EXT.P3 : COPY OF THE COMMISSIONER'S REPORT AND PLAN IN EXT-P1 SUIT DATED 8/6/2010. EXT.P4 : COPY OF THE TAX RECEIPT ISSUED BY THE MURIYAD VILLAGE OFFICE, DATED 4/5/2010. EXT.P5 : COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER DATED 1/12/2008. EXT.P6 : COPY OF THE TAX RECEIPT ISSUED IN THE NAME OF THE PETITIONER DATED 2/9/2008. EXT.P7 : COPY OF THE APPEAL MEMORANDUM FILED AT THE INSTANCE OF THE 2ND DEFENDANT AS CMA NO. 22/2010 DATED 26/6/2010 ON THE FILE OF THE SUB COURT, IRINJALAKUDA. EXT.P8 : COPY OF THE JUDGMENT DELIVERED BY THE SUB COURT, IRINJALAKUDA DATED 26/11/2010 IN CMA NO. 22/2010. EXT.P9 : COPY OF THE JUDGMENT IN O.P(C) NO. 961 OF 2010 BEFORE THIS HON'BLE COURT DATED 2/12/2010. EXT.P10 : COPY OF THE COMPLAINT BY THE PETITIONER BEFORE THE S.P. OF POLICE, THRISSUR DATED 6/1/2011 WITH COPY TO THE SUBORDINATE OFFICERS. EXT.P11 : COPY OF THE RECEIPT DATED 7/1/2011. RESPONDENT'S EXHIBITS: EXT.R2(A) : COPY OF THE DOCUMENT NO. 543 OF 2010 OF KALLATTUKARA SRO DATED 17.2.2010. EXT.R2(B) : COPY OF PHOTOGRAPHS OF HOUSEWARMING OF THE 2ND RESPONDENT. (Contd...) OP(C).No. 1075 of 2010(O) EXT.R2(C) : COPY OF LETTER DATED 13-02-2010 ISSUED FROM, REGIONAL OFFICE OF THE KERALA STATE CO-OPERATIVE BANK LTD DATED 13.2.2010. EXT.R2(D) COPY OF ORDER PASSED IN OS NO. 3330/2008 DATED 19-02-2010. EXT.R2(E) COPY OF THE ACKNOWLEDGEMENT SLIP BEARING NO. 128 DATED 7.5.2010. EXT.R2(F) COPY OF THE REGISTERED POSTAL COVER DATED NIL. EXT.R2(G) COPY OF THE REGISTERED POSTAL COVER DATED NIL. EXT.R2(H) COPY OF THE COMMISSION REPORT DATED 06-01-2010 AS EXT.R2(I) COPY OF THE RENT AGREEMENTS DATED 4-10-2007, 4-10-2008 & 5-10-2009 RESPECTIVELY. //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1075 of 2010 ==================================== Dated this the 15th day of June, 2011 J U D G M E N T Plaintiff in O.S. No.662 of 2010 of the court of Additional Munsiff, Irinjalakuda is the petitioner before me challenging judgment of learned Additional Sub Judge, Irinjalakuda in C.M.A. No.22 of 2010. Petitioner claimed that the suit property originally belonged to one Rossy, mother of the first respondent who sold 20.5 cents in Sy. No.26/3 with the building thereon to Tomy as per Ext.A3, assignment deed No.4303 of 2006. Tomy sold the said property to Vinoy as per Ext.A2, assignment deed. Vinoy is stated to have sold the said property to the petitioner as per Ext.A1, assignment deed No.3605 of 2007. Thus petitioner claimed to be the owner in possession of the said 20.5 cents and building bearing No.4/85A. It is the further case that first respondent took the building on rent from predecessor-in-interest of petitioner. Petitioner produced Exts.A7 to A9 to show the rental arrangement between first respondent and the predecessor-in-interest. Later first respondent executed rent deed in favour of petitioner after Annexure-1, assignment deed and accordingly first respondent was O.P(C) No.1075 of 2010 -: 2 :- residing in the house. While so the second respondent claimed ownership over the building. Hence petitioner instituted the suit seeking relief of injunction. Petitioner filed I.A. No.1653 of 2010 for temporary injunction. Second respondent contended that 76.5 cents of land including the suit property belonged to Rossy as A schedule of Ext.B1, partition deed No.2622 of 2004 and out of the said 76.5 cents (including the suit property), 69 cents was given as security to a Co-operative Society for a loan availed by the first respondent in the year 2006. Society took possession of the said 69 cents as per provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on 25.09.2010. The second respondent paid the entire amount to the Society on 11.02.2010 and got assignment of 24 cents in Sy.No.26/3 as per document No.543/2010 executed by Rossy. Exhibits B6 and B7 are produced to show that second respondent is paying revenue for the property which has been mutated in his name. Second respondent denied title and possession of petitioner. Learned Munsiff found prima facie case in favour of petitioner and granted injunction vide order on C.M.P. No.1653 of 2010. Against the said order, second respondent filed C.M.A. No.22 of 2010 in the court of learned Sub Judge, Irinjalakuda. O.P(C) No.1075 of 2010 -: 3 :- Learned Sub Judge allowed the appeal, reversed the order of injunction passed by the Munsiff and dismissed I.A. No.1653 of 2010. Judgment of learned Sub Judge is under challenge in this proceeding. I have heard learned counsel for petitioner and respondents. 2. Question for a decision is as to who is in actual possession of the building in question. Petitioner claimed that first respondent is in possession of the building as his tenant while second respondent claimed to be the owner in possession of the building as per Exhibit B2, assignment deed No.543/2010. Since there is dispute as to who is actually residing in the building, Advocate Sikky S., was appointed as Commissioner to inspect the building and report as to who is in occupation of the building. The Commissioner has submitted a report which prima facie indicate that the second respondent was in occupation of the building at the time of inspection. 3. Of course petitioner has a contention that after this Court passed order on 02.12.2010 directing second respondent not to take possession of the building, second respondent has made his entry into the building. Having regard to the circumstances stated above, it is not necessary for me to go into O.P(C) No.1075 of 2010 -: 4 :- that question in this proceeding. But I find it necessary to make some interim arrangement. I referred to the report of the Advocate Commissioner that at present the second respondent appeared to be in in occupation of the building in whatever right it may be. Having regard to the contentions raised by both sides what is required is only to permit second respondent to occupy the building subject to the result of the suit and subject to conditions. Writ Petition is disposed of in the following lines: (i) Second respondent is permitted to occupy the building in the suit property until disposal and subject to the result of the suit and subject to the condition that the second respondent shall deposit in the trial court Rs.750/- (Rupees Seven hundred and fifty only) per month until disposal of the suit. (ii) The deposit shall be made on or before 5th of every English Calender month beginning from 01.07.2011. O.P(C) No.1075 of 2010 -: 5 :- (iii) Trial court shall decide the question of possession as on the date of suit and other issues if any involved as provided under law untrammelled by the observations made in this judgment. (iv) It is made clear that report of Advocate Sikky S., is solely for deciding this Writ Petition. Parties can adduce evidence in the trial court regarding contentious issues. (v) The Second respondent is directed not to transfer ownership/possession of the building or other property involved in the suit, encumber the same or make any alteration or addition in the building or put up any other structure in the property until disposal of the suit. (vi) Trial court shall subject to the result of the suit decide as to whom the amount in O.P(C) No.1075 of 2010 -: 6 :- deposit should go. Contempt proceeding is closed in the light of the above directions. THOMAS P. JOSEPH, JUDGE. vsv