IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 WP(C).No. 4587 of 2009(U) ------------------------- OS.241/2007 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER(S): --------------- OMANA K. KUTTIPURATH HOUSE, PATHIRIYAD AMSOM DESOM THALASSERY. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): --------------- 1. PADINJAREKANDY LINESSH ,S/O.NARAYANAN VAYALELI PUTHIYAPURAYIL HOUSE, NEAR MATTANNUR HIGH SCHOOL, MATTANNUR. 2. K.V.BHASKARAN, S/O.KUNHOOTTY RATION DEALER, PATHIRIYAD AMSOM DESOM THALASSERY TALUK. 3. PURUTHOSHAMAN, S/O. CHATHUKUTTY COCONUT TREE CLIMBER, OTHAYOTHKUNNUMMAL HOUSE PATHIRIYAD AMSOM DESOM THALASSERY TALUK. 4. AMMANCHERRY RAJAN, S/O.KUNHIRAMAN BEEDI ROLLER, PADUVILAYI AMSOM, KUNNIRIKKA DESOM,. THALASSERY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.4587 of 2009 --------------------------------------------- Dated this the 11th day of February, 2009 JUDGMENT The Writ Petition is filed by the plaintiff in O.S.No.241/07 on the file of the court of the Munsiff of Koothuparamba. The suit was filed by her against the respondents for permanent prohibitory injunction. The petitioner filed I.A.No.2050/07 for temporary injunction. The respondents filed I.A.No.177/08 claiming compensation under Section 95 of the Code of Civil Procedure. The trial court dismissed the application for temporary injunction. The trial court also granted a sum of Rs.5,000/- as compensation to the respondents. Challenging the common order passed by the trial court, the petitioner filed Civil Miscellaneous Appeal No.3 of 2003 before the court of Subordinate Judge of Thalassery. The appellate court dismissed the appeal. The Writ Petition is filed challenging the judgment in C.M.A.No.3 of 2003. 2. The case of the petitioner is that she got title and possession over an extent of 75 cents of land as per a gift deed WPC No.4587/2009 2 executed in her favour and in favour of her sisters and the mother. It is stated that though the extent is shown as 54 cents, the donees have title and possession over an extent of 75 cents. 3. The respondents/defendants entered appearance and contended that the petitioner/plaintiff has suppressed material facts and obtained an order of interim injunction. They contended that the petitioner and her two sisters had filed O.S.No.96/1988. Defendant No.2 in the present suit is the transferee from defendant No.3 in O.S.No.96 of 1988. In the earlier suit, originally, the extent was shown as 54 cents by the plaintiff. Later, a new schedule was incorporated as schedule B and the plaintiff therein claimed title in respect of 21 cents of land shown in the B schedule. O.S.No.96/1988 was dismissed on 30.11.1992. A.S.No.25/93 filed against the judgment and decree in that suit was dismissed on 23.10.1993. Though S.A.No. 544/1994 was filed by the plaintiff, the Second Appeal was dismissed by the High Court on 5.9.2007. All these facts were suppressed by the petitioner in the present suit and an order of injunction was obtained. 4. The trial court held that the petitioner is not entitled WPC No.4587/2009 3 to any discretionary relief, she having suppressed material facts. It was also found that a conclusive finding was arrived against the petitioner in the earlier litigation. Therefore, the petitioner cannot claim possession in respect of the plaint schedule property. As regards the claim for compensation, the trial court held that the respondents herein are entitled to get compensation. The claim made by them at Rs.5,000/- was found to be low. Since the respondents had claimed only Rs.5,000/- as compensation, the trial court granted the same. 5. The lower appellate court considered the facts and circumstances of the case and the documentary evidence and held that the trial court was right in holding that the petitioner is not entitled to the injunction prayed for. The appellate court also found that the order of the trial court granting compensation under Section 95 of the Code of Civil Procedure, was legal and proper. 6. In this Writ Petition, the concurrent findings of fact arrived at by the courts below are under challenge. On a careful consideration of the order and judgment of the courts below, I am of the view that the petitioner is not entitled to any relief in WPC No.4587/2009 4 the interlocutory application filed by her for temporary injunction. The courts below were justified in dismissing the application filed by her for temporary injunction. The courts below were also right in allowing the application filed by the respondents claiming compensation. No grounds are made out for interference in the Writ Petition. Accordingly, the Writ Petition is dismissed. K.T.SANKARAN, JUDGE csl