IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 28224 of 2009(O) -------------------------- OS.145/2009 of MUNSIFF COURT, THALASSERY .................... PETITIONER(S): -------------------------- 1. MUNDERI NARAYANIKUTTY AMMA, D/O.LATE APPU NAIR, RESIDING AT PARATHALOTH HOUSE, DHARMADAM, MELUR, THALASSERY TALUK, KANNUR DISTRICT. 2. CHATHOTH RYRU NAIR, S/O.T.R.NAIR, RESIDING AT -DO- BY ADVS. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. RESPONDENT(S): ------------------------- V.MUKUNDAN, S/O.LATE NARAYANI, VALIYAKANDI PARAMBATH HOUSE, PINARAHI PO, KIZHAKUMBHAGAM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. MR.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28224/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT IN O.S.145/2009 FIELD BY THE RESPONDENT BEFORE THE MUNSIFF COURT, TELLICHERRY DTD. 4/4/09. P2: COPY OF THE LEASE DEED NO.929 OF 1949 OF S.R.O., KADIRUR DTD. 27/05/1949. P3: COPY OF THE LEASE DEED EXECUTED BY VADAVATHI KUNHIRAMAN, S/O.ACHUTHAN IN FAVOUR OF DEFENDANT NO.2, DTD. 5/11/1956. P4: COPY OF THE JUDGMENT IN O.S.353/1996 ON THE FILE OF THE MUNSIFF COURT, TELLICHERRY DTD. 20/02/2003. P5: COPY OF THE APPLICATION FILED BY THE RESPONDENT PRAYING FOR AN INJUNCTION AS I.A.876/2009 IN O.S.145/2009 DTD. 4/4/2009. P6: COPY OF THE COUNTER FILED BY PETITIONERSIN I.A.876/2009 DTD. MAY, 2009. P7: COPY OF THE COMMISSIONER'S REPORT ALONG WITH THE PLAN IN I.A.876/2009 IN O.S.145/2009 DTD. 29/05/2009. P8: COPY OF THE ORDER IN I.A.876/2009 IN O.S.145/2009 DTD. 25/06/2009. P9: COPY OF THE PETITION FILED IN I.A.1411/2009 IN O.S.145/2009 BY THE PETITIONERS BEFORE THE MUNSIFF COURT, THALASSERY,DTD. 7/2009. P10: COPY OF THE COUNTER FILED BY THE RESPONDENT IN I.A.NO.1411/2009 IN O.S.145/2009 DTD. 28/07/2009. P11: COPY OF THE ORDER IN I.A.1411/2009 IN O.S.145/2009 DTD. 10/08/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28224 of 2009 - O --------------------------------- Dated this the 18th day of November, 2009 J U D G M E N T Petitioners are the defendants in O.S.No.145 of 2009 on the file of the Munsiff Court, Thalassery. Suit is one for injunction, both prohibitory and mandatory, and the respondent is the plaintiff. Suit property is described as having an extent of 5 ares 87 Sqm comprised in resurvey No.24/2 in Thalassery. Petitioners/defendants have resisted the suit claim filing written statement. With the suit the respondent/plaintiff had moved an application for interim injunction restraining the defendants from trespassing upon the schedule property till disposal of the suit. Ext.P5 is the copy of that application to which petitioners/defendants filed Ext.P6 objections. Court below, admittedly, passed an order directing the parties to maintain status quo. Ext.P8 is the copy of that order. Pursuant thereto, petitioners/defendants moved Ext.P9 application seeking permission to place light roof sheets over the terrace of the building which is stated to be comprised in the property covered W.P.(C).No.28224 of 2009 - O 2 by a registered lease deed of the year 1949 in their favour. Placing of such light roof sheets over the building, according to the petitioners, would cause projection of its eaves, about 3.2 feet on the eastern side from the wall of the building, which, then, is likely to encroach upon the plaint property claimed by the respondent/plaintiff. In view of the previous order passed by the court directing the parties to maintain status quo Ext.P9 application was moved for placing the light roof sheets over the building belonging to the defendants. To Ext.P9 application, respondent filed Ext.P10 objections. Learned Munsiff after hearing both sides declined the request of the defendants under Ext.P9 application vide Ext.P11 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. 3. Two registered lease deeds of the year, 1949 and 1956, Exts.P2 and P3, had been executed in favour of the petitioners/defendants and they are in enjoyment of the properties covered by such leases, according to their counsel. W.P.(C).No.28224 of 2009 - O 3 Previously, in respect of the properties covered by those leases they had moved a suit for prohibitory injunction against the present respondent as the defendant in that suit. Petitioners/defendants have claimed to be commercial lessees entitled to the protection under Section 106 of the Land Reforms Act, which was disputed by the present respondent. Admittedly the suit was dismissed and the first and second appeals taken from the decision of the trial court were also not successful. At present, a special leave petition preferred with a condonation petition is stated to be pending consideration before the Apex Court. After the dismissal of the second appeal, respondent has filed the present suit scheduling the plaint property, which, according to petitioners, take in a portion of the lease hold covered by the 1956 lease deed. A building situate in the property covered by that lease has been let out to the Civil Supplies Corporation and in case the petitioners are prevented from and not permitted to put up light roof sheets over the terrace of that building as requested for it is most likely to cause irreparable damages to the building and the food articles stored in the building by the tenant. It was in that circumstance W.P.(C).No.28224 of 2009 - O 4 permission was sought for to place light roof sheets over that building. Learned counsel further submitted that petitioners are prepared to give an undertaking before the court that placing of the light roof sheets, if permitted, will be subject to the ultimate decision to be passed in the suit after trial. Strongly resisting the request made for placing the light roof sheets over the building as canvassed by the petitioners, learned counsel for the respondent/plaintiff contended that the light roof sheets are sought to be placed in such a manner encroaching upon the property covered by the suit in respect of which the court had already directed both sides to maintain status quo. Light roof sheets are sought to be placed with the extention of 2.5 feet outside the roof area and that will be an interference over the enjoyment of the plaint property by the plaintiffs, according to the counsel. The claim raised by the petitioners as commercial lessees having been turned down in the previous suit, the decision of which had been confirmed by the first appellate court and also this Court in second appeal and with the order of status quo prevailing in respect of the subject matter in the pending suit, petitioners are not entitled to put up the light roofing over W.P.(C).No.28224 of 2009 - O 5 the terrace encroaching upon the plaint property is the submission of the counsel for the respondent/plaintiff. 4. Perusing Ext.P11 order with reference to the submissions made by the learned counsel on both sides, I find no impropriety or illegality in the order passed by the learned Munsiff turning down the request under Ext.P7 application. Learned Munsiff on the basis of the commission report has taken note that eight pillars had been constructed encroaching upon the plaint property. It is also observed that the claims canvassed by the petitioners had been agitated in the previous suit as well. I do not want to express any opinion on the observations so made or the merit of the case canvassed by the rival side. In the given facts of the case whether the petitioners are entitled to the discretionary relief sought for which had been declined by the learned Munsiff alone need be looked into. In the backdrop that a previous suit filed by the petitioners had been dismissed negativing their claim as commercial lessees, and the court below has found that maintaining of status quo over the plaint property till its disposal is essential to safeguard the ends of justice, I find this Court in exercise of its visitorial jurisdiction will not be W.P.(C).No.28224 of 2009 - O 6 justified in interfering with P11 order unless it is shown to be suffering from any jurisdictional infirmity. No such infirmity is present in that order, nor any such case canvassed. Without going into the disputed facts involved in the nature of the rival claims presented by the parties a decision thereof cannot be arrived at, which no doubt is outside the supervisory jurisdiction of this Court at this stage, as the disputed facts have to be adjudicated in the pending suit. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-