IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 3815 of 2009(D) AGAINST THE ORDER DATED 17/01/2009 IN CMA.NO.105/2008 IN IA 7426/2008 IN OS.903/2008 of I ADDL.SUB COURT,ERNAKULAM PETITIONER: --------------- M/S.MUTHOOT HOTELS AND INFRASTRUCTURE VENTURES PVT.LTD,MUTHOOT CENTER,PUNNEN ROAD, THIRUVANANTHAPURAM-24,REP.BY ITS SENIOR MANAGER, SABU ZACHARIAS.K. BY SENIOR ADV. SRI.K.P.DANDAPANI SRI.MILLU DANDAPANI RESPONDENT: --------------- K.I.VARGHESE, S/O.ITTOOP, KACHAPPALLY HOUSE, MULANTHURUTHI, ERNAKULAM,REP.BY THE POWER HOLDER MR.BIJU ROY. ADV. SRI.G.RAJAGOPAL SMT.S.LEELALAKSHMI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON 08/04/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.903/2008 ON THE FILE OF THE SUB COURT, ERNAKULAM. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.903/2008 ON THE FILE OF THE SUB COURT, ERNAKULAM. EXT.P3 TRUE COPY OF THE ORDER DATED 12.11.2008 IN I.A.NO. 7426/2008 IN O.S.NO.903/2008 ON THE FILE OF THE FIRST ADDITIONAL SUB COURT, ERNAKULAM. EXT.P4 TRUE COPY OF THE MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL NUMBERED AS CMA.105/2008 ON THE FILE OF THE DISTRICT COURT, ERNAKULAM. EXT.P5 TRUE COPY OF THE ORDER DATED 19.1.2009 IN CMA.NO.105/2008 ON THE FILE OF THE 2ND ADDL. DISTRICT COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 3815 OF 2009 D ------------------------------------------------------ Dated this the 8th April, 2009 JUDGMENT This Writ Petition is filed by the defendant in O.S.No.903 of 2008, Sub Court, Ernakulam, challenging the order of temporary injunction granted in I.A.No.7426 of 2008, which was confirmed in C.M.A.No.105 of 2008 on the file of the Court of the District Judge of Ernakulam. 2. The respondent herein instituted the suit for declaration of title and recovery of possession of plaint A schedule item 1, for a mandatory injunction directing the defendant to remove the concrete piles therein and for a permanent prohibitory injunction restraining the defendant from constructing any building in the plaint B schedule property or obstructing the plaintiff from constructing a compound wall on the southern side of the A schedule property or from trespassing upon the A schedule property. I.A.No.7426 of 2008 was filed for temporary injunction. W.P.(C) NO.3815 OF 2009 :: 2 :: 3. The case of the plaintiff inter alia, is as follows: The property including plaint A schedule property, having an extent of 2 acres 62 cents in old survey No.298/1 (Re-Survey No.118/5), was acquired by the plaintiff as per Ext.A2 settlement deed executed by his father in 1958. An extent of 11.950 cents was taken for a way and another extent of 11.550 cents was acquired by KINFRA from the said extent of 2.62 acres. The balance extent of 2 acres 38.5 cents is the plaint A schedule property. The plaint B schedule property, situated on the southern side of A schedule property, belonged to Mathai Ittoop and after several transactions, evidenced by Exts.A6 to A14, it came to vest in D.V.Deo. In these title deeds (Exts.A6 to A14), the total extent shown is 75.234 cents situated in old survey No.297/5 (Re-survey No.118/4). D.V.Deo assigned the property to the defendant as per Ext.A14 assignment deed No.1406/07, wherein the extent shown is 97.85 cents equivalent to 39 Ares and 60 sq.m. The excess extent was shown in the title deed by the defendant and his predecessor by manipulation of re-survey records. The excess extent of 19.1 cents is shown as plaint A schedule item 1, which is sought to be recovered from the defendant. W.P.(C) NO.3815 OF 2009 :: 3 :: 4. The plaintiff contended that the defendant started construction of a multi storied building in the plaint B schedule property and started the piling work. Though initially the piling work was confined to B schedule property, later the defendant started pile driving in plaint A schedule item 1 property also. The building is being constructed by the defendant in violation of the Kerala Building Rules. The plaintiff will be put to irreparable injury and great hardship if the defendant is allowed to construct the building. 5. The defendant contended that many changes occurred to the properties of the parties. The property of the plaintiff was a paddy field, while the property of the defendant is a dry land. The defendant purchased the property having an extent of 39.60 Ares in Re-survey No.118/4. The predecessor in interest of the defendant was in possession of that much extent of land. The defendant purchased the property for constructing a hotel for which the necessary permit was obtained from the local authority and sanction was granted by the Tourism Department. The re-survey was completed several years ago and at this point of time, the plaintiff cannot question it. W.P.(C) NO.3815 OF 2009 :: 4 :: 6. The defendant put forward the contention that after re- survey, the extent in almost every survey number has increased. It was pointed out that Exts.A3 and A4 would show that the plaintiff has paid basic tax for 7.95 acres in Thandaper No.2968. After re- survey, the plaintiff has paid basic tax for an extent of 7.66 acres, evidenced by Ext.B20 in Thandaper No.1498. The difference in extent in the old Thandaper and new Thandaper is 29 cents. It was admitted by the plaintiff that an extent of 11.95 cents and 11.55 cents respectively were taken for road and acquired by KINFRA, the total extent being 23.5 cents. It is also pointed out that an extent of 2.965 cents was acquired under the Land Acquisition Act and thus the total deficit will be 2.535 cents, which according to the defendant, must have been included in the adjacent lands, where after re- survey, the extent has increased, as is evident from Exts.B10, B13 and other documents. According to the defendant, the case of trespass over an extent of 19.1 cents is clearly ruled out from the documentary evidence available in the case. 7. The plaintiff contended that the lie of the defendant's W.P.(C) NO.3815 OF 2009 :: 5 :: property, as shown in the plan attached to Ext.A16, is such that it is bounded by roads and the property of the plaintiff. The excess land found in the possession of the defendant certainly must be part of the plaintiff's property. 8. The trial court as well as the appellate court found that the plaintiff has established prima facie case for the grant of temporary injunction and that the balance of convenience is also in favour of the plaintiff. Thus temporary injunction was granted by the courts below. 9. The learned counsel appearing for the parties pointed out that on the application of the plaintiff, a Commissioner was appointed to inspect the properties and to identify the properties in accordance with survey records and title deeds. The Commissioner and surveyor have commenced the work and it is not completed. 10. The courts below mainly laid stress on the excess extent shown in Ext.A14 title deed executed in favour of the defendant, while all the prior documents from 1960 to 1987 show a lesser W.P.(C) NO.3815 OF 2009 :: 6 :: extent. The courts below also thought that excess extent would not be available with the plaintiff unless there is some manipulation or trespass. While considering the case in that angle, proper exphasis was not laid on the fundamental aspect that the plaintiff has to prove his title to enable him to get a decree based on title. Any excess found in the possession of the defendant would not automatically vest in the plaintiff, the neighbouring property owner. 11. The trial court noticed in the order thus: “Plaintiff has already filed application for measurement of property. Item 1 of plaint A schedule property is to be located based on the document, in which the property is described with old survey records. Hence I am of the view that unless and until the interim injunction prayed for is granted plaintiff will be sustained with irreparable loss and hardships.” 12. The lower appellate court, while dealing with the excess extent shown in Ext.A14 than the extent shown in prior title deeds, held thus: “Land definitely does not grow by itself. Hence the defendant is bound to explain how his predecessor who purchased the property only in 1987 got excess land. Apart from the roads, covering the southern and eastern side of his property, the remaining boundaries W.P.(C) NO.3815 OF 2009 :: 7 :: are adjoining the property of the plaintiff alone. If the defendant's predecessor did not encroach public road, it has necessarily to be an encroachment from the plaintiff's property. The fact that the members of the plaintiff's family are also in possession of excess land is no reason for the defendant to clinge on to the excess land found in his possession.” 13. I do not think the approach made by the courts below as mentioned above is correct. It is true that to preserve the disputed property and to maintain status quo, temporary injunction can be granted even if the plaintiff has not fully established his case. Establishment of a prima facie case is enough for granting temporary injunction. But, at the same time, a case cannot be entirely built up by the plaintiff on the basis of the title deed in favour of the defendant, in the facts and circumstances of the case, particularly when it is shown by documentary evidence that re-survey has resulted in excess land having been found in several survey numbers. 14. Then, the question is whether the case put forward by the plaintiff would constitute a prima facie case justifying the grant of temporary injunction and whether the balance of convenience is in favour of granting temporary injunction. W.P.(C) NO.3815 OF 2009 :: 8 :: 15. I would like to take note of some suggestions made by the learned Senior Counsel appearing for the defendant in this regard. He submitted that the defendant is prepared to deposit Rs.One Crore and produce the fixed deposit receipt before Court as security and it could be placed at the disposal of the Court for satisfying any decree or order that may be passed by the Court. It is pointed out that the sum of Rs.One Crore would be the market value of the plaint A schedule item 1 property which is sought to be recovered. The learned Senior Counsel also pointed out that the defendant is also prepared to execute a bond for the aforesaid sum in any manner the court directs. The only request made by the defendant in this regard is that permission may be granted to the defendant to construct the building in the property of the defendant, including the disputed extent of 19.1 cents of land. The learned Senior Counsel for the defendant also submitted that the defendant is prepared to file an affidavit undertaking to demolish that portion of the building, if ultimately it is found that such portion is included in the plaintiff's property. Reliance was placed on the decision of the Supreme Court in Mandali Ranganna and others v. T.Ramachandra and others (AIR 2008 SC 2291). W.P.(C) NO.3815 OF 2009 :: 9 :: 16. In answer, the learned counsel for the plaintiff submitted that the plaintiff does not intend to sell his property or any portion thereof and therefore he cannot agree to the suggestions made by the defendant. He also submitted that the decision in AIR 2008 SC 2291 is distinguishable on facts. 17. The learned counsel for the plaintiff also relied on several decisions to support the order and judgment passed by the courts below. 18. In the facts and circumstances of the case, I am of the view that the matter requires fresh consideration by the trial court, particularly in view of the subsequent developments and in the light of the suggestions made by the defendant. I would not have thought of directing the trial court to consider the matter afresh, but for the fact that the Commissioner, with the help of surveyor, has commenced the work of identifying the property with the aid of survey records and title deeds. In the nature of the dispute involved in the case, survey demarcation with reference to old survey and re- W.P.(C) NO.3815 OF 2009 :: 10 :: survey is very material. If the report and plan are submitted by the Commissioner, they would be helpful to the court to arrive at a right conclusion on surer grounds. 19. For the aforesaid reasons, I set aside the order passed by the trial court dated 12.11.2008 in I.A.No.7426 of 2008 and the judgment dated 19.1.2009 in C.M.A.No.105 of 2008 on the file of the Court of the District Judge, Ernakulam. The trial court shall consider I.A.No.7426 of 2008 afresh after the report and plan are submitted by the Commissioner. The Commissioner shall file the report and plan on or before 15.6.2009. The trial court shall dispose of the application within one month from the date of receipt of the Commissioner's report and plan. The trial court shall also take note of the suggestions made by the defendant as noted in paragraph 14 above and the reply thereto by the plaintiff. 20. Till the disposal of the application for temporary injunction (I.A.No.7426 of 2008) by the trial court, there will be an interim injunction restraining the defendant, their men and agents from making any construction in plaint A schedule item 1 property, which W.P.(C) NO.3815 OF 2009 :: 11 :: is the disputed property having an extent of 19.1 cents. Any construction which the defendant may make in the plaint B schedule property will be subject to the result of the order in I.A.No.7426 of 2008. 21. It is made clear that I have not expressed any opinion on the merits of I.A.No.7426 of 2008. The Writ Petition is allowed to the extent indicated above. (K.T.SANKARAN) Judge ahz/