IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 OP(C).No. 3107 of 2011(O) ---------------------------------- (O.S. NO. 305/2010 OF SUB COURT, ALAPPUZHA) PETITIONER: -------------------- H.SUDHEER, AGED 28 YEARS, S/O. HAMZA, SUDHEER MANZIL, MANNANCHERRY P.O., MANNANCHERRY MURI, MANNANCHERRY VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI. B. RENJITHKUMAR RESPONDENTS: ------------------------ MANNANCHERRY PANCHAYATH, REPRESENTED BY ITS SECRETARY, MANNANCHERRY P.O., ALAPPUZHA-688 533. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SCL. OP(C).No. 3107 of 2011(O) APPENDIX PETITIONER'S EXHIBITS EXT.P1 : TRUE COPY OF THE AGREEMENT FOR SALE DTD.30.3.2002 BETWEEN THE FATHER OF PETITIONER SRI.HAMZA AND PANCHAYATH. EXT.P2 : TRUE COPY OF THE PLAINT OS 305/2010 DTD.7.8.2010 BEFORE THE SUB COURT, ALAPPUZHA. EXT.P3 : TRUE COPY OF THE IA 1403/2010 IN OS 305/2010. EXT.P4 : TRUE COPY OF THE OBJECTION DTD.30.8.2010 IN EXT.P3 IA FILED BY THE PANCHAYATH. EXT.P4(a): TRUE COPY OF THE WRITTEN STATEMENT DTD. 30.8.2010. EXT.P5 : TRUE COPY OF THE STATEMENT DTD.29.10.2010. EXT.P6 : TRUE COPY OF THE ORDER DTD.6.10.2010 IN IA 1403/2010 IN OS 305/2010 OF THE SUB COURT. EXT.P7 : TRUE COPY OF THE ORDER DTD.24.8.2011 IN CMA NO.45/2010 OF THE ADDL. DISTRICT JUDGE, ALAPPUZHA. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// PS TO JUDGE SCL. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3107 of 2011 ==================================== Dated this the 04th day of October, 2011 J U D G M E N T Respondent is served but there is no response. 2. The third plaintiff in O.S. No.305 of 2010 of the court of learned Sub Judge, Alappuzha is the petitioner before me challenging Ext.P6, order of the learned Sub Judge on I.A. No.1403 of 2010 as confirmed by the learned Additional District Judge in C.M.A. No.45 of 2011 by Ext.P7, judgment. Petitioner and other plaintiffs are the legal heirs of one Hamza who is said to have executed a deed of indenture in favour of the respondent concerning a portion of the suit property. Petitioner and others claimed right under the said Hamza and on his death filed the suit for declaration of title and eviction of respondent and other defendants (2 to 21 and 22 to 33 being tenants of the shop rooms in the building) and for recovery of damages. Vide Ext.P3, I.A. No.1403 of 2010 petitioner and other plaintiffs prayed for an order of temporary injunction to restrain respondent and other defendants from effecting alterations on the building in the said property or from obstructing petitioner and other plaintiffs O.P(C) No.3107 of 2011 -: 2 :- entering into the suit property. The 22nd defendant filed Ext.P4, objection claiming that Hamza had assigned a portion of the suit property in favour of the respondent as per sale deed No.1227 of 1922 (claimed by the petitioner as indenture by which Hamza agreed to sell the property to the respondent) and gift deed No.3495 of 1992. Learned Sub Judge, impressed by the contention raised by the respondent and the 22nd defendant dismissed I.A. No.1403 of 2010 as per Ext.P6, order which learned Additional District Judge, confirmed as per Ext.P7, judgment in C.M.A. No.45 of 2011. 3. In this proceeding learned counsel has not advanced serious argument regarding gift deed No.3495 of 1992 executed by deceased Hamza in favour of the respondent. Challenge is to document No.1227 of 1992 which according to the petitioner is only an agreement for sale of the property referred therein. Learned counsel submits that for acquisition of property by sale, respondent was bound to comply with Rule 3(b) of the Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963. Reliance is placed on the decision in John v. Thaikkad Panchgayth (1990 [2] KLT 721). Learned counsel submitted that the existing building in the suit property O.P(C) No.3107 of 2011 -: 3 :- has already been demolished by the respondent where respondent is attempting to construct a multi storied commercial building. Apprehension of petitioner is that if before disposal of the suit the new building comes up and ultimately it is found that contention of petitioner and other plaintiffs regarding document No.1227 of 1992 is correct and no title has passed to the respondent by the said document, position may become irreversible on account of respondent claiming value of improvements for the structure which the respondent might put up in the property and petitioner may not be able to pay it. 4. Having regard to the contentions raised by petitioner and other plaintiffs and in the nature of the order passed by the learned Sub Judge as confirmed by the learned Additional District Judge I do not find reason to interfere with the matter at this stage. But I make it clear that demolition of the structure in the property covered by document No.1227 of 1992 and construction that may be made in the property covered by that document during the pendency of the suit shall be subject to the result of the suit. It will be open to the learned Sub Judge, if ultimately the contention of petitioner and other plaintiffs as regards the effect of document No.1227 of 1992 is accepted, to O.P(C) No.3107 of 2011 -: 4 :- grant relief to the petitioner and other plaintiffs concerning the property covered by the said document as provided under the law. It is made clear that it will be open to the petitioner and other plaintiffs to request the trial court to mould reliefs accordingly in the suit. Learned Sub Judge is directed to dispose of the suit if pre-trial steps are over, as early as possible. Original Petition is closed with the above observation and direction. THOMAS P. JOSEPH, JUDGE. vsv