IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 14393 of 2009(O) -------------------------- OS.326/2008 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): --------------- MOHAMMEDKUTTY, S/O. MOIDEEN, KAVUNGAPARAMBIL, TRIKKANDIYUR AMSOM,KUMARAMANGALAM DESOM. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- 1. HAMSA @ HAMSUMON, S/O. KOYA, PALLATHAREEKKATTIL, TRIPRANGODE AMSOM, KAIMALASSERI DESOM. 2. MAMMADKUTTY @ KUNJUTTY BAVA, S/O. KAVUMCHIRA MUHAMMED, ANANTHAVOOR AMSOM DESOM. 3. ABDUSALAM @ SALAM, S/O. NADUTHODIYIL ABDURAHIMAN, KALADI AMSOM DESOM. 4. SULAIKA, W/O. PALLATHIRIKKATTIL HAMSUMON, TRIPRANGODE AMSOM, KAIMALASSERI DESOM. 5. SUHARA, W/O. KAVUMCHIRA MAMMADKUTTY, ANANTHAVOOR AMSOM DESOM. 6. KADEEJA, W/O. NADUTHODIYIL ABDUSALAM, KALADI AMSOM DESOM. ADV. SRI.G.UNNIKRISHNON FOR RPTS. SRI.K.SANEESH KUMAR FOR RPTS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.14393 OF 2009 (O) ----------------------------------- Dated this the 6th day of July, 2009 J U D G M E N T Petitioner is the plaintiff in O.S.No.326/2008 on the file of the Munsiff's Court, Tirur. Suit is one for permanent prohibitory injunction. Admittedly, a partition deed was entered into by the petitioner and his sisters, who are respondents 4 to 6 in the writ petition, and in that deed, it was agreed that the petitioner would remove the structure situated in the plaint property, which was allotted to his sisters within a period of six months from the date of its execution. That was not done. Petitioner instituted the above suit seeking a decree of prohibitory injunction against his sisters from forcefully evicting him from the building, wherein, he is, admittedly in occupation. An application for interim injunction was moved by the petitioner as against his sisters to restrain them from evicting him from the building. His sisters, the defendants in the suit, raised a counter claim in their written statement and W.P.(C).14393/09 2 also moved another application of mandatory injunction to compel the petitioner to remove the structure from the property allotted to them. The application moved by the petitioner was dismissed and that of his sisters, granted by the learned Munsiff. Challenge raised against the grant of mandatory injunction in favour of his sisters, by way of an appeal was also negatived by the learned Sub Judge. Propriety and correctness of the judgment passed by the learned Sub Judge is impeached in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. At the time of hearing, the learned counsel for the petitioner confined his submissions to seek a grace period, in view of the rainy season, for shifting his residence and for removal of the structure in the property allotted to the sisters. The learned counsel for the respondents has no objection in providing him a short time for vacating from the building and removing the structure, provided, the petitioner files an unconditional undertaking to do so. Having regard to the facts and W.P.(C).14393/09 3 circumstances presented, I find that some indulgence can be shown to the petitioner. Petitioner is directed to surrender vacant possession of the property, removing the structure where he is at present in occupation, allotted to his sisters within 45 days from the date of this judgment. He shall file an undertaking before the Munisff Court, Tirur, unconditionally agreeing to remove the structure and surrender possession to respondents 4 to 6, his sisters, on or before the expiry of the period provided, within a period of one week from the date of this judgment. In case, no such undertaking is tendered within the time stipulated, the learned Munsiff shall proceed with the steps to execute the order of mandatory injunction. Writ petition is disposed as indicated above. Handover a copy of this judgment to the counsel on both sides. S.S.SATHEESACHANDRAN JUDGE prp