IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 OP(C).No. 2788 of 2011(O) ------------------------- CMA.99/2009 of I ADDL. DISTRICT COURT, PALAKKAD IA NO.2175/2009 IN OS.447/2009 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER(S)/APPELLANT/PETITIONER/PLAINTIFF: ------------------------------ KANTHASWAMY, S/O.MALAYANDI CHETTIAR,'KANTHA VILLA', 30/459,NEIKKARA STREET,VADAKKANTHARA, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------- 1. SELVAMANICKAM, W/O.S.THANKAVELU,ASHOK TRADERS, PATEL ROAD,RAM NAGAR, COIMBATORE,TAMIL NADU 641 001. 2. RAJESWARY, W/O.K.MAYILRAJ, 30/612,NEIKKARA STREET, VADAKKANTHARA P.O.,PALAKKAD DISTRICT-678001. 3. JAGADAMBAL M, W/O.RADHAKRISHNAN T., 30/459,NEIKKARA STREET, VADAKKANTHARA P.O.,PALAKKAD DISTRICT-678001. ADV. SRI.U.BALAGANGADHARAN FOR R1 & R3 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.2788/2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE PLAINT IN OS NO.447/2009 ON THE FILE OF MUNSIFF'S COURT,PALAKKAD. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT NO.1/RESPONDENT NO.1 HEREIN IN EXT.P1 SUIT. EXTP3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT NO.2/RESPONDENT NO.2 IN EXT.P1 SUIT. EXT.P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT NO.3/RESPONDENT NO.3 IN EXT.P1 SUIT. EXT.P5 TRUE COPY OF THE RAZI ENTERED IN OS NO.223/1974 ON THE FILE OF SUB COURT,PALAKKAD. EXT.P6 TRUE COPY OF IA NO.2175/2009 IN EXT.P1 SUIT EXT.P7 TRUE COPY OF THE COMMISSION REPORT FILED AS PER THE ORDERS PASSED IN IA NO.2204/2009 IN EXT.P1 SUIT. EXT.P8 TRUE COPY OF THE ORDER DATED 05.08.2009 PASSED IN IA NO. 2175/2009 IN OS NO.447/2009 ON THE FILE OF MUNSIFF'S COURT,PALAKKAD. EXT.P9 TRUE COPY OF THE JUDGMENT DATED 21.06.2011 PASSED IN CMA NO.99/2009 ON THE FILE OF DISTRICT COURT,PALAKKAD. EXT.P10 TRUE COPY OF THE JUDGMENT DATED 3.8.2011 PASSED IN CC NO.450/2009 THE FILE OF JFCM-II,PALAKKAD. RESPONDANTS'S EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2788 of 2011 -------------------------------------- Dated this the 20th day of September, 2011. JUDGMENT Though respondents are served there is no response. 2. Petitioner is aggrieved by Ext.P8, order passed by learned Additional Munsiff, Palakad on I.A.No.2175 of 2009 in O.S.No.447 of 2009 as confirmed by the learned Additional District Judge-I, Palakkad in C.M.A.No.99 of 2009. In the suit for partition he filed against the respondents, he prayed for an order of temporary injunction against third respondent interfering with his residence in the suit property. Learned Munsiff found that petitioner has not proved possession of the suit property and disallowed the prayer. That was confirmed by the learned District Judge in the C.M.Appeal. 3. Learned counsel for petitioner contends that on the death of parents of petitioner on 10.01.1978 and 05.07.1979 petitioner inherited a share in the property and hence he is entitled to get partition and separate possession of his share. Being a co-owner in possession he cannot be ousted from possession except by due process of law. It is pointed out from Ext.P10, judgment dated 03.08.2011 of the learned Judicial First Class Magistrate-II, Palakkad, in C.C.No.450 of 2009 that PWs 1, 2 and 4 ('PW4' is wrongly mentioned in the judgment as PW3, according to the learned counsel) who are the third respondent, her husband and daughter had admitted in the course of OP(C)No.2788/2011 2 evidence in that case that petitioner was staying in the house in the suit property even prior to the date of alleged trespass in that case – 28.07.2009. Learned counsel submitted that the suit was filed on 24.07.2009 and invited my attention to Ext.P7, report dated 31.07.2009 of the Advocate Commissioner where it is stated in page 4 that the Commissioner could find articles of petitioner and 3rd respondent in the house in question which indicated that both are staying in the said house. In the circumstances it is contended that the courts below were not justified in disallowing the prayer for injunction. 4. Courts below found on a question of fact consequently that petitioner has not established possession of the property and hence, is not entitled to injunction. No doubt, Ext.P7, report has referred to the alleged occupation of petitioner but, the Advocate Commissioner inspected the property on 29.07.2009 while according to the Police who charge sheeted petitioner, his wife and son in Ext.P10, case, there was a trespass on 28.07.2009. True, it is seen from Ext.P10, judgment that PWs 1, 2 and 4 referred to the occupation of petitioner in the said house even prior to 28.07.2009. But I must remember that the suit was filed only on 24.07.2009. 5. Since courts below have entered a concurrent finding as to possession I am not inclined to interfere with the order/judgment under challenge. 6. Learned counsel for petitioner submits that the suit itself if OP(C)No.2788/2011 3 coming up for trial on the 23rd of this month. Learned Munsiff has to dispose of the suit untrammelled by any observation/finding in the impugned order/judgment or any reference to the merit of the case and disposal of this Original Petition. Learned Additional Munsiff, Palakkad is directed to consider the claim of petitioner on merit on the basis of the evidence adduced by the parties. With the above direction, this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks