IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 OP(C).No. 2659 of 2011(O) ------------------------------------ [OS.NO.373/2011 OF MUNSIFF'S COURT,CHAVAKKAD] .................... PETITIONER: ------------------- K.KALYANIKUTTY AMMA, AGED 78 YEARS, W/O.LATE KALAPPURAKKAL BHASKARAN NAIR, KARAKKAT HOUSE, P.O.PAVARATTY, TRISSUR DISTRICT. BY ADVS. SRI.B.RAMACHANDRAN, SMT.K.B.REKHA. RESPONDENTS: ------------------------ 1. MINI.K., AGED 40 YEARS, W/O.ARAVINDAKSHAN, THIRUVATHIRA, MAMBULLI LANE, EROOR SOUTH P.O., TRIPUNITHURA - 682 301. 2. MALATHY AMMA, AGED 75 YEARS, W/O.REGHUNADHAN NAIR, KALAPPURAKKAL HOUSE, VENKIDANGU P.O., THRISSUR DISTRICT - 680 510. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2659/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SETTLEMENT DEED NO.469/2000 OF S.R.O. MULLASSERY DTD. 09/03/2000 EXECUTED BY R.2. EXT.P.2: COPY OF THE PRELIMINARY JUDGMENT DT.D 19/01/2004 IN O.S. NO. 648/2000. EXT.P.3: COPY OF THE ORDER DTD. 31/07/2009 IN I.A. NO. 2733/2004. EXT.P.4: COPY OF THE PLAINT DTD. 22/03/2011 FILED AS O.S. NO.373/2011 BEFORE THE MUNSIFF'S COURT, CHAVAKKAD. EXT.P.5: COPY OF THE ORDER DTD. 25/03/2011 IN I.A. NO.1764/2011 IN O.S. NO.373/2011 OF THE MUNSIFF'S COURT, CHAVAKKAD. EXT.P.6: COPY OF THE I.A. NO.2697/2011 IN O.S. NO.373/2011 DTD. 03/06/2011. EXT.P.7: COPY OF THE PURCHASE CERTIFICATE NO.988/76 DTD. 30/12/1976 ISSUED FROM LAND TRIBUNAL, MULLASSERY. EXT.P.8: COPY OF THE PURCHASE CERTIFICATE NO.987/76 DTD. 30/12/1976 ISSUED FROM LAND TRIBUNAL, MULLASSERY. EXT.P.9: COPY OF THE PURCHASE CERTIFICATE NO.958/76 DTD. 30/12/1976 ISSUED FROM LAND TRIBUNAL, MULLASSERY. EXT.P.10: COPY OF THE PURCHASE CERTIFICATE NO.2744/77 DTD 22/07/1977 ISSUED FROM LAND TRIBUNAL, MULLASSERY. EXT.P.11: COPY OF THE PURCHASE CERTIFICATE NO. 577/78 DTD. 28/01/1978 ISSUED FROM LAND TRIBUNAL, MULLASSERY. EXT.P.12: COPY OF THE COMMON ORDER DTD. 08/07/2011 IN IA. NO. 1764/2011 AND I.A. NO. 2697/2011 IN O.S. NO. 373/2011 OF THE MUNSIFF'S COURT, CHAVAKKAD. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2659 of 2011 -------------------------------------- Dated this the 18th day of August, 2011. JUDGMENT The 6th defendant in O.S.No.373 of 2011 of the court of learned Munsiff, Chavakkad is the petitioner before me challenging Ext.P12, common order passed by the learned Munsiff on I.A.Nos.1764 of 2011 and 2697 of 2011. According to the petitioner, she has obtained a final decree for partition in O.S.No.648 of 2000 of the court of learned Sub Judge, Thrissur, she deposited the entire value of stamp paper, the final decree was engrossed in the stamp paper and registered with the office of the Sub Registrar. She filed E.P.No.184 of 2011 for delivery of her share and for recovery of mesne profits. At that time, the daughter of her sister-in-law filed O.S.No.373 of 2011 before the learned Munsiff, Chavakkad seeking partition of properties covered by the preliminary and final decrees in O.S.No.648 of 2000. She claimed 1/7th share in the said properties. It is also her claim that the parties are governed by the marumakkathayam law of succession and that since she was born on 18.02.1970 and petitioner and other defendants (in O.S.No.373 of 2011) were born before 01.12.1976 all of them are entitled to a share in the property by birth. 1st respondent filed I.A.No.1764 of 2011 for an order of injunction to restrain petitioner and others from alienating the property under Order 39 Rule1 of the Code of Civil Procedure (for short, “the Code”). There was an order of temporary injunction granted by the learned Munsiff. Petitioner filed I.A.No.2697 of 2011 under Rule 4 of Order 39 of the OP(C) No.2659/2011 2 Code to vacate the order of injunction. Learned Munsiff considered the applications jointly and disposed of it by Ext.P12, common order observing that properties are tarward properties allotted in partition to one Naniyamma and children and that when property is given in partition to a natural thavazhi, members of that thavazhi cannot take the property independently. Instead, it continued to be thavazhi properties and hence there is prima facie justification in the claim made by 1st respondent. So holding the order of injunction was confirmed and I.A.No.2697 of 2011 was dismissed. Ext.P12, common order to that effect is under challenge. 2. Learned counsel for petitioner contends that the order is ex facie illegal since it goes against the judgment and decree of a superior court, the Sub Court, Thrissur in O.S.No.648 of 2000. It is also contended that in the circumstance learned Munsiff was not legally or factually correct in granting injunction or confirming it. In the circumstance this Court is required to interfere in exercise of its supervisory jurisdiction under Article 227 of the Constitution, it is argued. Reliance is placed on the decision in Manoj v. Guruvayoor Devaswom (2011 (2) KLT 1022) and Shantha v. Sahadevan (2011 (2) KLT 1031). 3. It is not disputed before me that Ext.P12, common order is amenable to an appeal under Order 43 Rule 1(r) of the Code. In Manoj v. Guruvayoor Devaswom where this Court exercised jurisdiction under OP(C) No.2659/2011 3 Article 227 of the Constitution against the order of injunction it was found that the order is per se illegal as the order of injunction affected a person who was not a party to the suit. That is not the situation in this case. Petitioner is a party to O.S.No.373 of 2011. The question whether learned Munsiff was competent to grant injunction and the reasoning adopted to grant injunction and make the interim order absolute are matters which the appellate court can and has to decide. It is not as if this Court should interfere in the matter, when the statutory remedy of appeal is available. 4. The appropriate course open to the petitioner therefore, is to challenge the impugned order before the appellate court as provided under Order 43 Rule 1(r) of the Code. Original Petition is closed without prejudice to the right of petitioner to approach the appellate forum as provided under law. THOMAS P.JOSEPH, Judge. cks