IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 OP(C).No. 1459 of 2011(O) ------------------------- CMA.43/2010 of SUB COURT,KOTTARAKKARA OS.307/2010 of MUNSIFF COURT, PUNALUR (IA 1723/2010) .................... PETITIONER (S): -------------------- SAMKUTTY, S/O. PAPPACHAN, AGED 40 YEARS, SWAPNA BHAVAN, PERINGALLOOR, EDAMULACKAL, PATHANAPURAM TALUK. BY ADV. SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENT(S): --------------- 1. MARIAMMA @ OMANA, W/O. PAPPACHAN, VALIYAVILA VEEDU, KANNAMKODE, ALENCHERY, EDAMULAKKAL VILLAGE, PATHANAPURAM TALUK - 689 695. 2. MONCY @ ABEY, S/O. PAPPACHAN, VALIYAVILA VEEDU, KANNAMKODE, ALENCHERY, EDAMULAKKAL VILLAGE, PATHANAPURAM TALUK - 689 695. 3. BETTY AJITH, VANCHARAYIL, SAM JOHN CHAL, VEROTHAK NAGAR, THANE WEST, MAHARASHTRA STATE - 400 033. 4. SOOSAMMA, KOCHUPARAMBIL, KARIKUNNAM.P.O, PALA, IDUKI DISTRICT - 685 586. ADV. SRI.M.SASINDRAN FOR R1,4 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1459/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE PETITION IN I.A.NO.1723/10 IN O.S.NO.307/2010 FILED BEFORE THE MUNSIFF'S COURT, PUNALUR DATED 2.9.2010. EXT.P2: COPY OF THE ORDER IN I.A.NO.1723/2010 IN O.S.NO.307/2010 ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR DATED 25.9.2010. EXT.P3: COPY OF THE JUDGMENT DATED 14.3.2011 IN C.M.A.NO.43/2010 ON THE FILE OF THE SUB COURT, KOTTARAKKARA. RESPONDENTS' EXHIBITS : EXT.R1(a) : COPY OF THE COUNTER STATEMENT FILED BY THE FIRST RESPONDENT TO I.A.NO.1723 OF 2010 IN O.S.NO.307 OF 2010 ON THE FILE OF THE MUNSIFF COURT, PUNALUR. EXT.R1(b) : COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS 3 AND 4 TO I.A.NO.1723 OF 2010 IN O.S.NO.307 OF 2010 ON THE FILE OF THE MUNSIFF'S COURT, PUNALUR SUPPORTING THE CONTENTIONS RAISED BY THE RESPONDENTS 1 AND 2. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ----------------------------- O.P.(C).No.1459 of 2011 ----------------------------- Dated this the 22nd day of June, 2011 JUDGMENT The petitioner is the plaintiff in O.S.No.307 of 2010 on the file of the court of the Munsiff of Punalur. The suit is for partition of the plaint schedule property. The petitioner claimed 1/6th share. 2. The petitioner/plaintiff filed I.A.No.1723 of 2010 for temporary injunction restraining the respondents from transferring the property or from creating documents or from taking forcible possession after dispossessing the petitioner. The trial court dismissed the application for temporary injunction as per the order dated 25th September, 2010. The trial court held that the plaintiff suppressed material facts and therefore, he was not entitled to get the discretionary relief of temporary injunction. The first respondent claimed title to the property as per a settlement deed executed in the year 1987. O.P.(C) No.1459/2011 2 The trial court relied on the settlement deed and held that the first defendant is entitled to possess and enjoy the property and that the plaintiff is only a trespasser. After refusing injunction, the trial court directed the petitioner to vacate the premises and to restore possession of the property in favour of the first respondent/first defendant. Though the petitioner filed C.M.A.No.43 of 2010 before the court of the Subordinate Judge of Kottarakkara, the appellate court dismissed the C.M.Appeal. The petitioner is aggrieved by Exhibit P2 order passed by the trial court and Exhibit P3 judgment passed by the lower appellate court. 3. The petitioner claims that the property belonged to his father and after his death in 1995, the petitioner is entitled to a share. According to the first respondent, the deceased settled the property in her favour in the year 1987. She contended that some other properties were given to the plaintiff. It was held that in the facts and circumstances, it was just and proper to deny temporary injunction in favour of the plaintiff. The courts O.P.(C) No.1459/2011 3 below found that the settlement deed of the year 1987 confers title on the first defendant and therefore, prima facie, the petitioner is not entitled to get temporary injunction as prayed for. 4. The order and judgment passed by the trial court and the lower appellate court, to the extent the courts below dismissed the application for temporary injunction, are legal and proper. However, the direction issued by the trial court to the petitioner to vacate the premises is outside the scope of the application for temporary injunction. No opportunity was afforded to the petitioner to answer such a claim and no proper enquiry was made on that aspect. The case of the first respondent is that the petitioner trespassed upon the property and took possession of the house when the first respondent was abroad. Relief was granted in favour of the first respondent in the injunction application filed by the petitioner and that too without putting the petitioner/plaintiff with notice of any proposal to grant such relief, is illegal. Accordingly, though I agree with the view taken by the O.P.(C) No.1459/2011 4 courts below dismissing the application for temporary injunction, I set aside the direction given by the trial court to the petitioner to vacate the premises in favour of the first respondent. To that extent, the Original Petition is allowed. It is made clear that the findings and observations in the order passed by the trial court and the judgment passed by the appellate court would not be relied on at the stage of trial and disposal of the suit. The above order vacating the order of the trial court directing the petitioner/plaintiff to give vacant possession to the first respondent, will not preclude the first respondent from seeking other appropriate remedies before the trial court in the same proceeding or in any other appropriate proceedings. K.T.SANKARAN JUDGE csl