IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 13699 of 2009(O) -------------------------- PETITIONER(S): --------------- 1. BEENA, AGED 35 YEARS W/O. N.C.MANOJ KUMAR, LAKSHMI VILASAM BHARANIKKAVU THEKKUM MURI, MAVELIKKARA TALUK NOW RESIDING AT DEEPA BHAVAN, NJETTOOR MURI KULANADA VILLAGE, KOZHENCHERRY TALUK. 2. DILEEP KUMAR,AGED 35 YEARS S/O.SIVAN PILLAI, DEEPA BHAVAN NJETTOOR MURI,KULANADA VILLAGE,KOZHENCHERRY TALUK. BY ADV. SRI.M.NARENDRA KUMAR RESPONDENT(S): --------------- ASHA KRISHNAN, AGED 35 YEARS D/O.MEENAKSHIAMMA, COMPANT EMPLOYEE, SAI KRISHNA THONNALLOOR MURI, PANDALAM VILLAGE, ADOOR TALUK REP. BY POWER OF ATTORNEY HOLDER, MEENKASHIAMMA AGED 64 YEARS, W/O.KUNJUKRISHNAN NAIR, SAI KRISHNA THONNALLOOR MURI, PANDALAM VILLAGE, ADOOR TALUK. ADV. SRI.N.N.SASI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8/06/2009, THE COURT 18/06/2009 DELIVERED THE FOLLOWING: WPC.13699/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.364/2008 IN THE COURT OF MUNSIFF, ADOOR DATED 14.10.2008. EXT.P2: COPY OF THE SALE DEED NO.552/2006 OF SRO, PANDALAM. EXT.P3: COPY OF THE SALE DEED NO.972/2008 OF SRO, PANDALAM. EXT.P4: COPY OF THE OBJECTION FILED BY PETITIONERS. EXT.P5: COPY OF THE COMMISSION REPORT IN O.S.NO.364/2008 IN I.A.NO.1604/2008. EXT.P6: COPY OF THE COMMISSION REPORT IN O.S.NO.364/2008 IN I.A.NO.1963/2008. EXT.P7: COPY OF THE ORDER IN I.A.NO.1603/2008 DATED 28.1.2009. EXT.P8: COPY OF THE JUDGMENT DATED 7.4.2009 IN C.M.A.NO.15/2009 IN THE COURT OF DISTRICT JUDGE, PATHANAMTHITTA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.13699 OF 2009 (O) ----------------------------------- Dated this the 18th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P8 and quash the same. ii. to grant such other reliefs which this Honourable Court deems fit and necessary in the facts and circumstances of the case. 2. Petitioners, two in number, are the defendants in O.S.No.364/2008 on the file of the Munsiff Court, Adoor, and the respondent is the plaintiff in that suit. Suit was one for a declaration that the provision in Ext.P3 sale deed executed in favour of the defendants by the owners of that property to use the plaint schedule property as a way by the vendees is not binding on the schedule property and the owner of that WPC.13699/09 2 property, the plaintiff. Ext.P1 is the copy of the plaint in the suit. In Ext.P3 sale deed executed in favour of the defendants, a provision had been made in respect of the plaint schedule property enabling them to use it for their enjoyment of the property covered by the deed. Plaint schedule property is a pathway having a width of Rs.10.25 ft. extending to an area of 1 are 11 Sq.m (2.750 cents) situated in the north-south direction in R.S.No.172/24 in Block No.3 of Pandalam Village. Suit claim was based on Ext.P2 sale deed executed in favour of the plaintiff in respect of the plaint schedule property, the pathway aforementioned, which according to the plaintiff, conferred absolute title and possession over such property in her favour and, after transfer, none had any right to encumber or create any restraint in the enjoyment of the exclusive possession of that pathway by the plaintiff. With the suit, the plaintiff moved an interlocutory application for interim injunction to restrain the defendants from interfering in any manner with the plaint schedule property setting forth a case that on the basis of the provisions made in their sale deed, Ext.P3, which is sought to be declared as null and void in the suit, the defendants are making attempts to trespass upon the pathway and reduce portions WPC.13699/09 3 of that pathway annexing it to their property. The defendants appeared and resisted the interim relief prayed for, filing objections. Ext.P4 is the copy of that objections. After deputing an Advocate Commissioner to conduct a local inspection and obtaining a report and plan, copy of which are produced as Ext.P5, and examining the materials produced by both sides and hearing the respective counsel, the learned Munsiff dismissed the application for interim injunction holding that the plaintiff has not established a prima facie case, and, further, she has suppressed material facts from the purview of the court while seeking the discretionary relief of injunction. Ext.P7 is the copy of the order passed by the learned Munsiff dismissing the injunction application. Impeaching the correctness of Ext.P7 order, the plaintiff filed an appeal as C.M.Appeal.No.15/2009 before the District Court, Pathanamthitta. The learned District Judge, after hearing both sides, reversed Ext.P7 order and allowed the interlocutory application moved by the plaintiff not in toto, but to the extent of restraining them from altering the lie and nature of the schedule item directing for maintaining the statusquo as under the reports filed by the Commissioner. A further order was also made that no vehicular access shall be WPC.13699/09 4 made through the schedule property, the pathway. Ext.P8 is the copy of that judgment. Propriety and correctness of Ext.P8 judgment passed by the learned District Judge is impeached in the writ petition contending that it is unsustainable as the interference with the order of the Munsiff amounted to an irregular exercise of appellate jurisdiction as there was no justifiable grounds to do so, and, further, the reasonings formed with reference to the provisions covered by Ext.P2 sale deed and the legal principles enunciated thereunder are patently erroneous and unsustainable. The petitioners, the defendants in the suit, have filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India to quash Ext.P8 judgment and for passing appropriate writ, order or direction as found necessary to advance the ends of justice. 3. I heard the learned counsel on both sides. The learned counsel appearing for the petitioners submitted that though the petitioners are really aggrieved and have serious exceptions to the findings made under Ext.P8 judgment by the learned District Judge interpreting the legal effect of the WPC.13699/09 5 provisions covered by Ext.P2 sale deed, which is the crucial issue arising for adjudication in the suit, in the present writ petition, over and above seeking a direction to the trial court to decide the suit without being influenced by the observations in Ext.P8 judgment, the grievance of the petitioners is confined to the restraint placed on them in making use of the pathway for vehicular access. That part of Ext.P8 judgment restraining the defendants from making use of the pathway for vehicular access in the given facts of the case, demand modification, submits the counsel, setting forth a plea that the defendants are now putting up a residential building in their property covered by Ext.P2 sale deed and the construction is in half way. Any restraint in using the pathway for vehicular access as ordered in Ext.P8 judgment, it is submitted, will cause them severe hardship and irreparable injury. On the other hand, resisting the modification of the impugned judgment sought for by the petitioners, the learned counsel for the respondent, plaintiff in the suit, strenuously urged that the interpretation of the provisions in Ext.P2 sale deed, with reference to the legal principles enunciated under Sections 11 to 40 of the Transfer of Property Act is unimpeachable, and under Ext.P8 judgment, the legal right of WPC.13699/09 6 the plaintiff to restrain interference over the plaint schedule property by the defendants is recognised, but, still, at present, only an order restraining them from making use of that way for vehicular access alone is passed. According to the learned counsel, there is no scope for interference with Ext.P8 judgment passed by the learned District Judge which has been rendered after meticulously examining the documents produced with reference to the legal principles applicable. Inviting my attention to Leela v. Ambujakshy (1989 (2) KLT 142), the learned counsel for the respondent contended that the vendor of Ext.P2 sale deed, Sri.Raveendran Pillai had no right over the property covered by Ext.P3 sale deed executed in favour of the defendants, but, he too joined with his wife and son, the vendors of that deed, to incorporate a provision under Ext.P3 deed enabling the vendees to use the pathway already conveyed to the plaintiff. The provision under Ext.P2 deed is an absolute restraint and it cannot be enforced by the defendants who obtained title over another portion of the property from other persons, the wife and son of the above said Raveendran Pillai, submits the counsel. So, in any view of the matter, according to the counsel, the challenge raised against Ext.P8 WPC.13699/09 7 judgment is devoid of any merit, and the writ petition deserves only to be dismissed. 4. I have considered the submissions of the counsel on both sides with reference to Ext.P7 order and Ext.P8 judgment and the materials produced in the writ petition. In Ext.P8 judgment, the learned District Judge has laboured much to explain the legal effect of the provision covered by Ext.P2 sale deed, the reservation made in favour of the vendor to use the pathway after effecting a sale of that pathway, and concluded that the provision so made is a restraint not enforceable under law. Arriving at such a view, Ext.P7 order passed by the learned Munsiff declining the relief of interim injunction sought for by the plaintiff was reversed and an order of interim injunction in favour of the plaintiff was passed restraining the defendants from altering the lie and nature of the schedule pathway directing them to maintain statusquo with an order that no vehicular access shall be made through the schedule property. Some of the material circumstances taken note by the learned Munsiff to hold that the plaintiff has no prima facie case for the discretionary relief of injunction, it is seen, were not taken note of nor appreciated with the WPC.13699/09 8 seriousness demanded while P7 order was reversed under Ext.P8 judgment. Needless to advert that in the grant of a discretionary relief of injunction, most significant and pertinent questions arising for consideration are whether the party seeking such relief has a prima facie case, the fair chances of his sustaining the suit claim after trial, his bona fides and conduct etc. with reference to the balance of convenience and the likelihood of suffering irreparable injury if the injunction is not allowed. The learned Munsiff has noticed, as seen from Ext.P7 order, before instituting the present suit and interlocutory application for injunction, the 2nd petitioner (2nd defendant) has filed a suit as O.S.No.36/2008 in respect of the very same subject matter and an order had been passed in an application moved by the plaintiff therein directing both parties to maintain statusquo. Ext.B4 marked and considered in I.A.No.1603/2008 giving rise to P7 order and P8 judgment is the certified copy of the order passed in I.A.No.112/2008 in O.S.No.36/2008 instituted by the 2nd defendant as plaintiff wherein statusquo order was passed. Prior to the institution of that suit through a power of attorney the present plaintiff had instituted another suit as O.S.No.391/2007 before the very same court against the WPC.13699/09 9 executant of Ext.P2 sale deed and his wife for a declaration that the provision made under Ext.P2 sale deed enabling the executant and his successors to use the property as a way is null and void and for an injunction restraining them from creating any encumbrance over that property. In violation of the injunction order passed in that suit Ext.P3 sale deed was executed in favour of the present defendants incorporating a provision that the vendees have a right to use the pathway, which was already sold to the plaintiff, is their case for instituting the present suit seeking a declaration that such provision made in Ext.P3 sale deed executed in favour of the defendants is null and void. Though the plaintiff has referred to the institution of the suit O.S.No.391/2007 and the order of injunction passed therein as against the vendor in Ext.P2 sale deed and his wife, the learned Munsiff noticed that while seeking the discretionary relief of injunction the suit filed by the 2nd defendant as plaintiff as O.S.No.36/2008 and the order passed in an interlocutory application in that suit directing both parties to maintain statusquo were suppressed both in the plaint and also in the affidavit sworn to in support of the interlocutory application for injunction. Examining Ext.B4, the certified copy of I.A.No.112/2008 in O.S.No.36/2008, the learned WPC.13699/09 10 Munsiff noticed that an order directing the parties to maintain statusquo in respect of the very same subject matter involved continued to be in force. The learned District Judge, while passing Ext.P8 judgment has not adverted to the suppression of that material fact from the purview of the court by the plaintiff, which persuaded the learned Munsiff to refuse the interim injunction applied for. A party seeking the discretionary relief must approach the court with clean hands and any material suppression of fact while seeking such relief cannot at all be viewed lightly. Now what is noticed is that there is already an order in the suit filed by the 2nd defendant as plaintiff directing the parties to maintain statusquo over the subject matter, and while that order continues to be in force, the learned District Judge, vide Ext.P8 judgment in the present suit has passed an interim inunction against the defendants, petitioners herein, with a further order that no vehicular access shall be made through the pathway. So much so, while the order in the previous suit directing the parties to maintain statusqo as between the present plaintiff and the 2nd defendant continue to be in force, in the subsequent suit vide Ext.P8 judgment an order of injunction in conflict with the previous order has been issued, WPC.13699/09 11 which cannot be appreciated and sustained. If the learned District judge had taken note of the continuance of the statusquo order passed in the previous suit instituted by the 2nd defendant over the very same subject matter, which was binding on the plaintiff the order of injunction restraining the defendants from making use of pathway for vehicular access could not have been issued as it is in conflict with the previous order to maintain statusquo. As on the date of passing of Ext.B4 order, if the petitioners herein, the defendants, had been using the pathway for vehicular access they are entitled under law to have such enjoyment unless the statusquo ordered by the court under B4 order is vacated under due process of law. The report and plan prepared by the Commissioner, a copy of which is produced as Ext.P5 clearly demonstrate that the petitioners are putting up a house construction in their property covered by Ext.P3 deed and they have unloaded materials for such construction in the pathway indicating that as on the date of the visit of the Commissioner, the way had been used by them for vehicular traffic. Paragraph 7 of the report shows that the materials required for construction were brought in by the vehicles through the pathway involved in the suit. So much so, the WPC.13699/09 12 restriction in Ext.P8 judgment against the defendants from making use of the pathway for vehicular access without taking note of and also the impact of Ext.B4 order passed earlier in a different suit by a competent court directing the parties to maintain statusquo, which continues to be in force, is liable to be set aside, and I do so. 5. The interpretation over the provision in Ext.P3 sale deed, the disputed question arising for adjudication in the suit, with reference to the legal principles applicable, by the learned District Judge and the definite conclusion arrived in P8, the impugned judgment, that the provision in the deed, which is sought to be declared as null and void by the plaintiff, is a restraint and unenforceable in law as covered by Section 11 of the Transfer of Property Act, as rightly contended by the learned counsel for the petitioners, was quite outside the scope of enquiry in an interlocutory application for injunction while evaluating the question whether the plaintiff has made out a prima facie case or not for such discretionary relief. It is true that in such an enquiry, an opinion can be expressed but of course not a conclusive finding, which no doubt has to be formed only after trial, after WPC.13699/09 13 affording opportunity to both sides to lead evidence in support of their respective case. The intention of the parties in incorporating such provision in the deed is the most relevant and pertinent factor which deserve to be scrutinised and that can be done only after opportunity is given to lead evidence. Whether such intention can be gathered from the document itself, or only after examining the surrounding circumstances as well deserve to be appreciated, which can be considered only after recording the evidence. So the interpretation of the provision in Ext.P2 sale deed and conclusion formed by the learned District Judge was premature and it cannot have any value while examining that provision in the trial of the suit. Similarly, advertence made by the learned District judge to Section 40 of the Transfer of Property Act to rule out that the provision in Ext.P2 sale deed cannot be considered as an obligation imposing restriction on use of land is apparently not correct. The learned District Judge has ruled out the applicability of Section 40 of the Transfer of Property Act in the present case interpreting the provision under Ext.P2 sale deed, expressing a view that the restriction of use of the land is a restraint and even if it is taken as burden of obligation and such right or obligation may be enforced against a transferee WPC.13699/09 14 with notice but not against a transferee for consideration and without notice of right or obligation. The plaintiff in the present case has taken Ext.P2 deed with a provision imposing a restriction in the use of land, by which a burden of obligation is prima facie created over the land, and she is not a gratuitous transferee of the property or a transferee for consideration without notice of the obligation. As being a party to the deed with the restrictive provision, and not a subsequent transferee for consideration without notice of such provision, prima facie, the plaintiff cannot be attributed with the status of a transferee for consideration without notice of the obligation over the land. 6. It is true, the plaintiff has a case that her vendor has no right over the property conveyed by his wife and son, Ext.P3 sale deed in favour of the defendants, and as such, his joining with the vendors and making a provision under that deed enabling the plaintiff to use the pathway already sold to the plaintiff is unenforceable. The learned counsel for the plaintiff has relied on Leela v. Ambujakshy (1989 (2) KLT 142), to contend that the only person entitled to the restraint made in the land transferred is the transferor and that too WPC.13699/09 15 only for the enjoyment of the portion retained by him at the time of transfer and that such provision cannot be enforced by the transferee of another person. P3 sale deed would show that a predeceased son of the vendor under Ext.P2 sale deed had also some right over that property transferred in favour of the defendants and without ascertaining the date of death of that son, whether before or after execution of Ext.P2 sale deed, no definite conclusion can be formed that the vendor under Ext.P2 sale deed had no subsisting right over the property conveyed in Ext.P3 sale deed. That is a matter arising for consideration in the trial of the suit. For the time being, the argument advanced that vendor under Ext.P2 sale deed had no right over the transferred property conveyed by Ext.P3 sale deed cannot be accepted on its face value and as such, no reliance is possible, in the facts involved, on the decision referred to by the learned counsel for the plaintiff. The proposition canvassed based on that decision need be considered only after parties are given opportunity to lead evidence in trial of the case. 7. Ext.P8 judgment passed by the learned District Judge restraining the defendants from making use of the pathway for WPC.13699/09 16 vehicular access which has been found repugnant to the statusquo order issued in a previous suit, and which continue to be in force, is set aside, and the writ petition is disposed directing the learned Munsiff to dispose of the suit untrammelled by any of the observations and findings made in Ext.P8 judgment. Writ petition is disposed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009