IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 ESA.No. 3 of 2000() ----------------------- AS.147/1999 of D.C. & SESSIONS COURT,KOZHIKODE OS.103/1984 of PRL.M.C.,KOZHIKODE-II .................... APPELLANT(S): RESPONDENTS/APPELLANTS ---------------------------------------------------- 1. P.P.BALAGOPALAN, S/O. PARAKKOT POYILIL GOPALAN NAIR, PARAKKOD POYILIL HOUSE, PERUMANA AMSOM AND DESOM, KOZHIKODE TALUK. 2. P.P.UNNIKRISHNAN, S/O. GOPALAN NAIR, PERUMANNA AMSOM AND DESOM, KOZHIKODE TALUK. 3. P.P.RAMANKUTTY, S/O. GOPALAN NAIR, -DO- -DO- 4. P.P.VIJAYAKUMAR, S/O. -DO- -DO- 5. P.P.THANKAMANI @ DAKSHAYANI, D/O. -DO- -DO- 6. P.P.USHA, D/O. -DO- -DO- BY ADVS. SRI.P.T.MOHANKUMAR SMT.ARLISS TRENCY ANTONY RESPONDENT(S):PETITIONERS/RESPONDENTS ------------------------------------------------------- 1. KANDILAL MOROLATH PADMANABAN NAIR, S/O.UNNNERI NAIR, P[ERUMANNA AMSOM AND DESOM OF KOZHIKODE TALUK. 2. M.P.GOPALAKRISHNAN, S/O.KALLOLIMADATHIL PARAMBIL NARAYANA PILLAI, STATE PRESIDENT KERALA KSHETHRA SAMRAKSHNA SAMITHI, SREENIKETHAN, VAZHAPALLY, P.O.MUDAVOOR, MOOVATTUPUZHA, ERNAKULAM DISTRICT. R1 & R2 BY ADVS. SMT.PREETHY KARUNAKARAN SRI.ANISH S.AMBADY SRI.R.RAJESH KORMATH THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO. 1078/2000 IN ESA.No 3/2000 DISMISSED 02/02/2011 SD/- HARUN-UL-RASHID, JUDGE /TURE COPY/ P.A. TO JUDGE svs HARUN-UL-RASHID, J. ------------------------ E.S.A.No.3 Of 2000 ---------------------- Dated this the 2nd day of February, 2011. J U D G M E N T The following substantial questions of law are formulated at the time of admission: 1) Where the courts below are justified in holding that an application for restitution will lie in a suit for perpetual prohibitory injunction filed by the appellants herein and which was dismissed? 2) Where the courts below are justified in holding that restitution can be ordered to a 3rd party, whose interest were assigned to a 3rd party? 3) Whether the courts below are justified in accepting the case of respondents who contended in the suit that a 3rd party was in possession of the suit property and the same having accepted by the courts? 4) Whether the courts below justified in holding that the bar under Section 144(2) is attracted when the Kerala Kshethra Samrakshana Samiti was not a party to the suit at all? 5) Whether the courts below are justified in holding that the petition under Section 144 of the Code of Civil Procedure is maintainable when admittedly the alleged dispossession is not the direct consequence of any order in the suit? ::2:: E.S.A.No.3 Of 2000 2. The plaintiffs in O.S.No.103 of 1984 on the file of the Munsiff Court, Kozhikode II, are the appellants. They are the respondents in E.A.No.379/1993. E.A.No.379 of 1993 was filed by the sole defendant along with two other persons. Petitioners in E.A.No.379 of 1993 prayed that the plaint schedule property may be ordered to be redelivered to the third petitioner who is the president of the Kerala Kshethra Samrakshana Samiti. The trial court allowed the E.A and ordered that the plaint schedule property shall be delivered to the possession of the first petitioner. Respondents/plaintiffs preferred A.S.No.147 of 1999 before the District Court, Kozhikode, challenging the order passed by the trial court. The lower appellate court dismissed the appeal. Parties hereinafter are referred to as the petitioners and respondents as arrayed in E.A.No.379 of 1993. 3. Suit was filed by the predecessor-in-interest of the present appellants/plaintiffs against petitioners 1 & 2 in E.A.No.379 of 1993 for a prohibitory injunction restraining them from trespassing into plaint schedule property or committing any waste therein. Suit was decreed on 24.1.1986. The lower appellate court in A.S.No.28 of 1986 set aside the decree and ::3:: E.S.A.No.3 Of 2000 judgment passed in the suit and allowed the appeal. Thus the suit stands dismissed. S.A.No.642 of 1990 filed before this Court challenging the judgment in A.S.No.28 of 1986 was also dismissed. Pending suit there was a proceeding before the Sub Divisional Magistrate, Kozhikode as M.C.No.33 of 1984. The Sub Divisional Magistrate passed an order directing the Village Officer, Perumanna to attach and take possession of the property. The order is dated 30.3.1985. Pursuant to the said order the Village Officer, as receiver, is in possession of the property. 4. Subsequent to the dismissal of S.A.No.642 of 1990, the second defendant in the suit filed E.A.No.379 of 1993 for restitution. The trial court examined the question as to whether the applicant is entitled to get back possession of the plaint schedule property. The second petitioner is one of the defendants in the suit who subsequently died. The third petitioner is the president of the Kerala Kshethra Samrakshana Samiti. The trial court after examining the question involved held that in the absence of any document produced before the court to show that the first petitioner who was the defendant in the suit had transferred the possession to any other person, the first ::4:: E.S.A.No.3 Of 2000 petitioner is entitled to get delivery of the petition schedule property. The court also held that the application for restitution filed under Section 144 of the CPC is maintainable. On the basis of the said findings the trial court allowed the petition and ordered that the plaint schedule property will be delivered to the possession of the first petitioner. Plaintiffs in the suit preferred A.S.No.147 of 1999. The appellants re-agitated all the questions raised before the trial court. The appellate court after re- appreciating the evidence and examining the contentions reached the very same conclusions and held that the order passed by the trial court is sustainable in all respects. In the second appeal preferred against the judgment and decree in the appeal the question as to whether the appellants are entitled to restitution under Section 144 was re-agitated. 5. I have considered the rival contentions of the parties. The trial court as well as the appellate court considered the question as to whether the first applicant is entitled to restitution of the property under Section 144 of the CPC. Both courts after analyzing the evidence on record held that the application for restitution is maintainable and the first applicant is entitled to get ::5:: E.S.A.No.3 Of 2000 possession of the property. I do not find any reason to interfere with the findings entered by the fact findings courts. I fully agree with the reasons stated for granting relief to the first petitioner. No question of law muchless any substantial questions of law arises for consideration in the execution second appeal. 6. The learned counsel for the appellant submitted that the receiver has taken possession of 15 cents of land (14 X 13 six feet koles) under the order of restitution. The respondents are taking steps to take possession of the entire plaint schedule property having an extent of 68 cents. Appellants are free to move the execution court for appropriate reliefs. In that case, the execution court shall enquire into the grievance of the appellants and pass appropriate orders. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-