IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 OP(C).No. 3988 of 2011(O) ------------------------- IA 2137/2008 IN OS.367/2008 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONERS ---------------- 1. R. SHYAMALA, AGED 64 YEARS, D/O. RAJAMMA , VICE CHAIRMAN, BODHI CHARITABLE TRUST, BODHI NAGARAM, VANDITHAVALAM, CHITTUR TALUK,PALAKKAD DISTRICT. 2. ANILKUMAR, AGED 26 YEARS, S/O. SATHEEDRASENAN, HOUSE NO.9/93, VALMUTTY, CHITTUR VILLAGE, PALAKKAD. 3. ARJUN JAYAKUMAR, AGED 22 YEARS, S/O. JAYAKUMAR, HOUSE NO.9/93, VALMUTTY, CHITTUR VILLAGE, PALAKKAD. 4. ASWANTH JAYAKUMAR, AGED 21 YEARS, S/O. JAYAKUMAR, HOUSE NO.9/93, VALMUTTY, CHITTUR VILLAGE, PALAKKAD. BY ADVS. SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR RESPONDENT --------------- SMITHA SREENIVASAN, AGED 37 YEARS, W/O. HARIDAS, GURUKRIPA, M.L.A ROAD, NENMARA VILLAGE, CHITTUR, PALAKKAD DISTRICT - 678 508. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk OP(C).No. 3988 of 2011(O) ---------------------------------- APPENDIX ------------- PETITIONER(S) EXHIBITS ------------------------------ EXHIBIT-P1-TRUE COPY OF THE PLAINT IN O.S 367/2008 DATED 19/06/2008 FILED BEFORE THE MUNSIFFS COURT, PALAKKAD BY THE RESPONDENT. EXHIBIT-P2-TRUE COPY OF THE WRITTEN STATEMENT DATED 16/10/2008 FILED BY THE PETITIONERS HEREIN IN O.S 367/2008 ON THE FILE OF THE MUNSIFFS COURT, PALAKKAD. EXHIBIT-P3-TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 19/06/2008 IN I.A 2137/2008 IN O.S 367/2008 ON THE FILES OF THE MUNSIFF COURT, PALAKKAD. EXHIBIT-P4-TRUE COPY OF THE COUNTER DATED NIL TO EXHIBIT-P3 FILED BY THE PETITIONERS HEREIN BEFORE THE MUNSIFF COURT, PALAKKAD. EXHIBIT-P5-TRUE COPY OF THE ORDER DATED 24/07/2008 IN I.A NO. 2137/2008 IN O.S NO. 367/2008 PASSED BY MUNSIFF'S (PRINCIPAL) COURT, PALAKKAD. EXHIBIT-P6-TRUE COPY OF THE JUDGMENT DATED 17/02/2011 IN C.M.A NO. 110/2008 PASSED BY THE DISTRICT COURT, PALAKKAD. RESPONDENTS' EXHIBITS : NIL ------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3988 of 2011 ==================================== Dated this the 07th day of December, 2011 J U D G M E N T Against concurrent finding entered by the courts below that prima facie, respondent-plaintiff is in possession of plaint schedule property, petitioners/defendants have filed this Original Petition. 2. Respondent filed the O.S. No.367 of 2008 in the court of learned Munsiff, Palakkad praying for a decree for prohibitory injunction against petitioners trespassing into the suit building or dispossessing respondent otherwise than by due process of law. Respondent also filed application for temporary injunction. That application was opposed by petitioners contending that they are in possession and enjoyment of the building in question. Learned Munsiff after hearing both sides and considering the documents produced by either side concluded that prima facie evidence revealed that respondent is in possession of the building and granted temporary injunction. That was confirmed by the learned District Judge, Palakkad in C.M.A. No.110 of 2008. Challenge is to the order passed by the learned Munsiff as confirmed by the O.P(C) No.3988 of 2011 -: 2 :- learned District Judge. 3. It is contended by learned counsel that though courts below made heavy reliance on Ext.C1, report of Advocate Commissioner to find that machineries of petitioners are not installed in the building in question, in the affidavit filed by the respondent in the trial court to summon records from the Town Police Station Palakkad it is conceded that the machineries are kept in the building in question which was not taken into account by the courts below. 4. It is not very much in dispute that building in question belonged to the father of respondent who is no more. Petitioners claimed right over the property as per a Will. Learned Munsiff observed that the question whether the Will is genuine or not is to be decided only after recording evidence and as provided under law and hence no reference can be made at this stage either to the Will or the recitals referred thereto. Learned Munsiff has referred to Exts.B3 to B7 to show that the Printing Press which according to the petitioner was functioning in the building in question had stopped functioning even in the year, 2007. Learned Munsiff has also referred to Exts.B8 and B9 to say that the Printing Press is functioning elsewhere and that Ext.C1 revealed that in the building occupied by the respondent, none O.P(C) No.3988 of 2011 -: 3 :- of the machineries are kept. Learned Munsiff proceeded to say that Ext.A4 also would support finding of the Advocate Commissioner in Ext.C1 to that effect. The above finding has been confirmed by the learned District Judge. 5. Assuming that there is any error in the finding, that is not a matter to be corrected in a proceeding under Article 227 of the Constitution. If the statement in support of the affidavit in I.A. No.2137 of 2008 supported the case pleaded by petitioners, they can rely on the same in the course of trial. Having regard to the fats and circumstances I do not find reason to interfere with the concurrent finding entered by the courts below. Learned Munsiff is directed to expedite disposal of the suit taking into account contentions of the parties raised and the evidence they may adduce and untrammelled by the observations/finding contained in the order as confirmed by the learned District Judge or in this judgment. Original Petition is dismissed with the above direction. THOMAS P. JOSEPH, JUDGE. vsv