IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 WP(C).No. 24177 of 2008(C) -------------------------- AGAINST THE ORDER IN IA 3048/2007 IN CMA.106/2007 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.22/2007 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- 1. SHEFANA, D/O.MOHAMMED SHERIF, PARTNER, M/S.UNIVERSAL GROUP, MOTOR PLAZA BUILDING, SREEKARYAM, CHERUVIKKAL, THIRUVANANTHAPURAM. 2. SALIM.M.KABEER, S/O.MOHAMMED KABIR, AGED 35, PARTNER, M/S.UNIVERSAL GROUP, MOTOR PLAZA BUILDING, SREEKARYAM, CHERUVIKKAL, TRIVANDRUM. 3. M/S.UNIVERSAL GROUP, MOTOR PLAZA BUILDING, REPRESENTED BY ITS PARTNER, T.C.1416(1), SREEKARYAM, CHERUVIKKAL, TRIVANDRUM. BY ADV. SRI.M.C.SEN (Sr.) ADV. C.S.MANILAL RESPONDENT(S): --------------- 1. VIJAYAMMA, D/O.CHINNAMMA, AGED 65, RESIDING AT TC 14/342, PALAYAM, TRIVANDRUM. 2. LATHAKUMARI, D/O.VIJAYAMMA, RESIDING AT TC 14/342, PALAYAM, TRIVANDRUM. 3. SULATHA KUMARI, D/O.VIJAYAMMA, RESIDING AT TC 14/342, PALAYAM, TRIVANDRUM. 4. ABDUL SALIM, S/O.MOHAMMED PILLAI, VILAYIL VEEDU, AZHOOR, PERUMKUZHI, TRIVANDRUM. BY ADV. SHRI G.S.REGHUNATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON 07/11/2008 DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT OS NO.22/2007 FILED BEFORE THE SUB COURT, TRIVANDRUM. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 INOS 22/2007 EXT.P3 TRUE COPY OF THE PURCHASE CERTIFICATE DATED 30.4.2005 EXT.P4 TRUE COPY OF THE SALE DEED DATED 6.1.2006 EXT.P5 TRUE COPY OF THE SALE DEED DATED 1.9.2006 EXT.P6 TRUE COPY OF THE LAND REVENUE RECEIPT DATED 14.10.2006 EXT.P7 TRUE COPY OF THE LAND REVENUE RECEIPT DATED 17.8.2006 EXT.P8 TRUE COPIES OF THELAND REVENUE RECEIPT DATED 14.2.2005 EXT.P9 TRUE COPY OF THE LOCATION CERTIFICATE DATED 30.10.2006 EXT.P10 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 30.10.2006 EXT.P11 TRUE COPY OF THE AFFIDAVIT AND THE PETITION IA NO.161/2007 IN OS 22/2007 EXT.P12 TRUE COPY OF THE OBJECTION TO THE IA FILED BY THE PETITIONERS HEREIN EXT.P13 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER EXT.P14 TRUE COPY OF THE ORDER DATED 28.9.2007 IN IA 162/2007 & 161/2007 IN OS 22/2007 EXT.P15 TRUE COPY OF THE C.M.APPEAL 106/2007 FILED UNDER SECTION 104 READ WITH ORDER 43 RULE 1 BEFORE THE APPELLATE COURT EXT.P16 TRUE COPY OF THE STAY APPLICATION IN CMA 106/2007 EXT.P17 TRUE COPY OF THE STAY ORDER DATED 22.5.2008 IN IA NO.3048/07 IN CMA 106/2007 EXT.P18 TRUE COPY OF THE ORDER DATED 18.7.2008 IN IA NO.3048/2007 IN CMA 106/2007 RESPONDENTS' EXHIBITS: EXT.R2(a) TRUE COPY OF THE REPORT OBTAINED BY THE DISTRICT COLLECTOR. EXT.R2(b) TRUE COPY OF THE PROCEEDINGS OF RDO DATED 27.11.2007 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24177 of 2008 C -------------------------------------- Dated this the 7th day of November, 2008. JUDGMENT Heard counsel on both sides. 2. Challenge in this proceeding is to Ext.P18, order dated 18.7.2008 in I.A.No.3048 of 2007 in C.M.A.No.106 of 2007 of the Court of learned First Additional District Judge. 3. Respondents/plaintiffs sued the petitioners/defendants 1 to 4 for a declaration that the purchase certificate issued in S.M. Proceeding No.3 of 2005 and the sale deed created on the strength of that purchase certificate are fraudulently created and not binding on the plaintiffs and the fifth defendant, for declaration that plaintiffs and fifth defendant are the absolute owners of the schedule properties and for mandatory injunction to direct the petitioners/defendants 1 to 4 to vacate the building bearing T.C.No.14/497 referred to in the plaint D schedule. Plaintiffs claimed that plaint A to D schedule properties were acquired by the first plaintiff as per sale deed Nos.2378 of 1965, 3572 of 1972 and 2724 of 1967 and while so, she executed settlement deed in favour of fifth defendant in the suit regarding 12 cents and another settlement deed in favour of the second plaintiff regarding 12.50 cents out of plaint B WP(C) No.24177/2008 2 schedule. Rest of the properties belong to and is in the possession of the first plaintiff. While so, plaintiffs learned that mutation of the property was effected in the name of fourth defendant regarding 30 cents out of the plaint schedule. Plaintiffs alleged that it was the result of manipulation in the revenue records with the assistance of some of the revenue authorities based on a fraudulent purchase certificate created for the purpose. Plaintiffs learned about defendants 1 to 4 occupying the building in plaint D schedule on 22.11.2006. Hence, the suit. Plaintiffs filed I.A.Nos.161 of 2007 and 162 of 2007 in the Sub Court for mandatory injunction to direct defendants 1 to 4 to vacate the building in plaint D schedule and for prohibitory injunction. Learned Sub Judge as per Ext.P14, common order dated 28.9.2007 allowed both the applications. Defendants 1 to 4 challenged the order of mandatory injunction in I.A.No.161 of 2007 before the learned First Additional District Judge, Thiruvananthapuram in C.M.A.No.106 of 2007 and moved I.A.No.3048 of 2007 for stay of operation of the impugned order. Learned First Additional District Judge as per Ext.P17, order dated 22.5.2008 granted stay till the application is finally heard and disposed of. Plaintiffs filed objection to I.A.No.3048 of 2007. In the meantime, plaintiffs approached this Court in W.P.(C) No.18204 of 2008 seeking direction for early disposal of I.A.No.3048 of 2007. A learned Single Judge of this Court as per judgment, dated 18.6.2008 directed the learned First Additional District Judge to dispose of C.M.A.No.106 of 2007 as expeditiously as possible and at any rate, to dispose of I.A.No.3048 of 2007 on the next hearing date (ie., 18.7.2008). Pursuant to that direction, learned First Additional District Judge WP(C) No.24177/2008 3 heard the parties in I.A.No.3048 of 2007 and by the impugned order, dismissed the application for stay. Interim stay granted as per Ext.P17, order dated 22.5.2008 was vacated. Defendants 1 to 3 are aggrieved and filed this Writ Petition. 4. It is contended by learned counsel for petitioners/defendants 1 to 4 that gross injustice has been done by disposing of the application for stay without disposing of the C.M.Appeal where petitioners/defendants 1 to 4 had the opportunity of assailing the order impugned in the C.M.Appeal. It is also contended by learned counsel placing authorities that a suit for mandatory injunction and much less, an application for temporary mandatory injunction would not lie in the facts and circumstances of this case. According to the learned counsel for respondents/plaintiffs, defendants 1 to 4 are mere unlawful occupants of the building in plaint D schedule and hence mandatory injunction could be prayed for and granted. According to the learned counsel, recovery of possession need be prayed for only if the petitioners/defendants 1 to 4 are in long, settled possession of the building. It is also contended by learned counsel that records produced in the trial court as well as along with the counter affidavit in this proceeding would show that the purchase certificate on the strength of which fourth defendant created documents in favour of first defendant was itself the result of fraud committed by petitioners/defendants 1 to 4 in collusion with some of the revenue authorities WP(C) No.24177/2008 4 and the District Collector has cancelled the patta in favour of the fourth defendant. So much so, petitioners/defendants 1 to 4 have no manner of right to continue their unlawful occupation of the building in plaint D schedule. 5. Though learned counsel for respondents/plaintiffs has addressed arguments supporting the impugned order, fact remained that learned First Additional District Judge is yet to dispose of C.M.Appeal No.106 of 2007 pending in his court. What is disposed of is only I.A.No.3048 of 2007 seeking stay of operation of order under challenge in C.M.Appeal. It would have been more appropriate if the learned First Additional District Judge had decided the C.M. Appeal. May be, it was because of the direction in the judgment dated 18.6.2008 in W.P.(C) No.18204 of 2008 that I.A.No.3048 of 2007 had to be disposed of on the next hearing date (18.7.2008) while keeping the C.M.Appeal pending. Since C.M.Appeal No.106 of 2007 is still pending consideration before the learned First Additional District Judge, I do not consider it just, necessary or proper to pronounce verdict on the contentions raised by the parties in this proceeding which may have a bearing on the decision of C.M.Appeal No.106 of 2007. In that situation I am of the view that the appropriate course is to direct that the order of mandatory injunction will stand in abeyance until the C.M.Appeal is decided by the learned First Additional District Judge and to direct the learned First Additional District Judge to dispose of C.M.Appeal No.106 of 2007 at the earliest. In the circumstances I am not inclined to go to the merits of the contentions raised by either side in this proceeding. WP(C) No.24177/2008 5 Resultantly, this Writ Petition is disposed of directing the learned First Additional District Judge, Thiruvananthapuram to dispose of C.M.Appeal No.106 of 2007 pending in that court at the earliest, at any rate within three weeks from the date of receipt of a copy of this judgment. The order of mandatory injunction will stand in abeyance till the disposal of the C.M.Appeal. THOMAS P.JOSEPH, JUDGE. cks