IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WP(C).No. 32419 of 2008(H) -------------------------- CMA.21/2008 of PRL.SUB COURT, IRINJALAKKUDA OS.1841/2007 of PRL.M.C.,IRINJALAKUDA .................... PETITIONER(S): --------------- ANANTHA PAI, S/O.JANARDHANA PAI, MADATHIPARAMBIL HOUSE, MANAVALASSERRY VILLAGE, IRINJALAKKUDA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER-M.A.SREEKUMAR, S/O.ANANTHA PAI, MADATHIPARAMBIL HOUSE, MANAVALASSERRY VILLAGE, IRINJALAKKUDA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S): --------------- GOPALA PAI, S/O.MADATHIPARAMBIL JANARDHANA PAI, PANDIKKUZHI DESOM, RAMESWARAM PADINJARE MURI, MATTANCHERRY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. ADV. SRI.K.G.BALASUBRAMANIAN FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2009, ALONG WITH WPC NO. 32423 OF 2008 & WPC NO. 32634 OF 2009, THE COURT ON 11/1/2010 DELIVERED THE FOLLOWING: WPC.32419/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.1841/2007 OF THE MUNSIFF COURT, IRINJALAKKUDA. EXT.P2: COPY OF THE ORDER IN I.A.NO.4035/2007 IN O.S.NO.1841/2007 OF THE PRINCIPAL MUNSIFF, IRINJALAKKUDA. EXT.P3: COPY OF THE PLAINT IN O.S.NO.399/2008 OF THE MUNSIFF COURT, IRINJALAKKUDA. EXT.P4: COPY OF THE APPLICATION IN I.A.NO.628/2008 IN O.S.NO.399/2008. EXT.P5: COPY OF THE OBJECTIONS FILED TO I.A.NO.628/2008 IN O.S.NO.399/2008. EXT.P6: COPY OF THE ORDER IN I.A.NO.628/2008 IN O.S.NO.399/2008. EXT.P7: COPY OF THE JUDGMENT IN C.M.A.NO.21/2008 OF THE SUB COURT, IRINJALAKKUDA. EXT.P8: COPY OF THE JUDGMENT IN C.M.A.NO.25/2008 OF THE SUB COURT, IRINJALAKKUDA. /TRUE COPY/ P.A. TO JUDGE “C.R” S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 ----------------------------------- Dated this the 11th day of January, 2010 J U D G M E N T Brief facts necessary for disposal of these three writ petitions, which are closely connected, but arising from two suits, can be summed up thus: Common petitioner in W.P.(C). No.32419 of 2008 and W.P.(C).No.32423 of 2008 has filed a suit as O.S.No.1841 of 2007 before the Munsiff Court, Irinjalakkuda for a declaration of his title and injunction over an immovable property having an extent of two acres. Property involved was admittedly purchased in the name of the defendant, but, major portion of the sale consideration was alleged to have been paid by the plaintiff. He has also advanced a case that he has prescribed title over the property by adverse possession as having continued possession of the property eversince the sale deed denying title of the defendant, the registered holder of that property. With the W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 2 suit, the plaintiff had moved an application for interim injunction to restrain the defendant from creating any document or interfering with his possession and enjoyment over the property. Pending consideration of that application, the defendant admittedly sold the property to another, the respondent in the W.P.(C).No.32423 of 2008. The above said respondent, after such transfer, instituted another suit as O.S.No.399 of 2008 before the very same court seeking a decree of injunction against the defendant, the plaintiff in the previous suit (O.S.No.1841 of 2007). 2. Plaintiff and defendant in O.S.No.1841 of 2007 are hereinafter referred to as such, and the plaintiff in the subsequent suit, O.S.No.399 of 2008 as the purchaser, for the sake of convenience. Documents produced with the two writ petitions, W.P.(C).No.32419 of 2008 and W.P.(C).No.32423 of 2008 are common and for the sake of convenience, reference is made to the documents as marked in W.P.(C).No.32419 of 2008. W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 3 3. The application for interim injunction moved by the plaintiff, after hearing both sides, was allowed by the learned Munsiff restraining the defendant from creating any document in respect of the property and from interfering with the possession and enjoyment of the plaintiff over the property till the disposal of the suit. Ext.P1 is the copy of the plaint in O.S.No.1841 of 2007 and Ext.P2 is the copy of the order of injunction passed in favour of the plaintiff. Pursuant to transfer of the property in favour of the purchaser, pending consideration of the application for interim injunction by the court, the subsequent suit, O.S.No.399 of 2008 was filed by the purchaser, in which, he claimed an interim injunction against the defendant (the plaintiff in O.S.No.1841 of 2007). That application for interim injunction was also allowed by the learned Munsiff. Ext.P3 is the copy of the plaint. Ext.P4 is the copy of the application for injunction and Ext.P5 copy of the objections and Ext.P6 copy of the order granting interim injunction in the above suit, namely O.S.No.399 of 2008. As against Ext.P2 order, the defendant in O.S.No.1841 of 2007 filed an appeal as C.M.A.No.21 of 2008 before the Sub Court, W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 4 Irinjalakkuda. As against Ext.P6 order, the defendant in O.S.No.399 of 2008 (plaintiff in the other suit O.S.No.1841 of 2007) filed another appeal as C.M.A.No.25 of 2008 before the very same court. The learned Sub Judge, after hearing the appeals separately passed Exts.P7 and P8 judgments. By Ext.P7 judgment, C.M.A.No.21 of 2008 was allowed vacating Ext.P2 order of injunction passed in favour of the plaintiff in O.S.No.1841 of 2007. By Ext.P8 judgment, C.M.A.No.25 of 2008 was dismissed confirming Ext.P6 order of injunction passed in favour of the purchaser/plaintiff in O.S.No.399 of 2008. Against Exts.P7 and P8 judgments, the writ petitions W.P.(C).No.32419 of 2008 and W.P.(C).No.32423 of 2008 respectively, are filed by the aggrieved party, plaintiff in O.S.No.1841 of 2007, who is also the defendant in O.S.No.399 of 2008. 4. The other writ petition W.P.(C).No.32634 of 2009 is filed by the defendant in O.S.No.1841 of 2007 challenging the order passed by the learned Munsiff allowing an application moved by the plaintiff for amending his plaint. The plaintiff W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 5 had moved an application furnishing particulars as to the date of commencement of his adverse possession over the suit property, which was not specifically stated earlier in the plaint. That application was objected to by the defendant. Overruling the objections, the learned Munsiff has allowed the amendment sought for permitting the plaintiff to furnish such particulars in the plaint. The order so passed by the learned Munsiff is challenged in the above writ petition. 5. I heard the counsel on both sides. Having heard the counsel at length and perusing Exts.P2 and P6 orders passed by the learned Munsiff and Exts.P7 and P8 judgments rendered by the learned Sub Judge, I find both the courts below have misguided their enquiry on the disputed facts presented in the case, and that has resulted in forming of conclusions which cannot be approved under law. The learned Munsiff, after examining the materials placed has passed Ext.P2 order holding that the plaintiff had made out a prima facie case for the grant of interim injunction applied for to restrain the defendant from creating any document over the W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 6 plaint property or interfering with its possession and enjoyment by the plaintiff. True, the plaintiff has produced only two ration cards to sustain his case of possession over the property, but, taking into account the other circumstances presented in the case like the creation of a mortgage over the suit property in favour of a chitty company on the date of the sale deed itself towards the chitty amount of Rs.3,500/- prized in the name of the plaintiff, and also towards the vacating of a house owned by the plaintiff by a kudikidappukaran, ten cents out of the property covered by the sale deed had been sold to him by the defendant, the learned Munsiff came to the conclusion that the case advanced by the plaintiff as to having possession and enjoyment over the property has to be accepted for the time being and his claim for title on the basis of the adverse possession can be adjudicated only in trial. In the appeal against Ext.P2 order, as seen from Ext.P7 judgment rendered by the learned Sub Judge, it is further seen that in the ration cards produced by the plaintiff, there were declarations by him as to having possession over the plaint property. Though these declarations were made much before W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 7 the commencement of the suit, the learned Sub Judge was not inclined to place any reliance on them as they were treated as self serving declarations. I do not want to express any opinion on the merit of the case canvassed by the plaintiff nor of the defense case projected by the defendant. However, it has to be pointed out the findings entered by the learned Munsiff that the plaintiff is prima facie found to be in possession over the plaint property, after analysing the circumstances presented in the case, could be interfered with by the learned Sub Judge in appeal only if such finding is found to be perverse and totally unreasonable on the materials placed in the case. Without adverting to the circumstances presented by the learned Munsiff, it is seen, under Ext.P7 judgment, the learned Sub Judge has reversed Ext.P2 order on the principle that true owner has to be presumed to be in possession of the land. Discarding the declarations made in the ration cards as self serving and that there is no evidence to show possession of the plaintiff, the learned Sub judge has formed a conclusion that the plaintiff has not made out a prima facie case for the relief of injunction. Plaintiff has produced only two ration W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 8 cards, in which, there were declarations as to his possession of the suit property, with such declarations made a decade before the filing of the suit, cannot be brushed aside in appreciating whether he has made out a prima facie case for the relief of interim injunction. More than that, the circumstances which were taken note of by the learned Munsiff, already adverted to, also have some significance in appreciating the question whether the plaintiff has a prima facie case. The learned Sub Judge in reversing Ext.P2 order has not come to the conclusion that the reasoning made by the learned Munsiff is erroneous and unsustainable. Interference with Ext.P2 order in the circumstances indicated above, without adverting to and considering the merit of the reasoning taken by the learned Munsiff in holding that the plaintiff had made out a prima facie case of injunction is not proper and correct. 6. In passing of Ext.P6 order by the learned Munsiff and Ext.P8 judgment rendered by the learned Sub Judge, it is noticed both courts have lost sight of the legal principles W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 9 applicable as to a transfer pending litigation. The application for injunction moved by the plaintiff to restrain the defendant from creating any document was pending consideration by the court when the defendant transferred the suit property in favour of the purchaser, who had thereafter filed the subsequent suit. The learned Munsiff and also the learned Sub Judge lost sight of the fact that the transferee who purchased the property pending suit is bound by Ext.P2 order. He has filed a separate suit after transfer and claimed an interim injunction does not enable him to wriggle out of the binding force of Ext.P2 order on him. Section 52 of the Transfer of Property Act enshrines the doctrine of 'lis pendens'. Merely because no order of injunction was passed on the application moved by the plaintiff on the date of transfer, it does not follow that the principle of lis pendens is inapplicable. The purport and object of the discretionary relief of injunction in a suit or proceedings is to preserve the statusquo over the subject matter till the disputes are adjudicated in trial and its final disposal by the court. Where an application for interim injunction to restrain the defendant W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 10 from alienating the property is pending for consideration, if any transfer is made without the permission of the court, it has to be viewed unless otherwise established as having been done with the mala fide intend to subvert and set at naught the order to be passed on the interlocutory proceedings by the court. The doctrine of 'lis pendens' is based on the principle that if a suit is pending in which any right to immovable property is directly or specifically in question, the property cannot be transferred or otherwise dealt with by any party to such suit or proceeding so as to affect the rights of any other party to that suit and if such a transfer takes place, the subsequent transferee will be bound by the ultimate decree that may be passed in that suit and he cannot claim any right to the property in preference to the earlier transferee if the suit is decreed. Section 52 of the Transfer of Property Act states that “in any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, that property cannot be transferred or otherwise dealt with by any party to the suit W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 11 or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.” So, pending consideration of the injunction application of the plaintiff to restrain the defendant from alienating the property, in the present case, it is seen, the property was alienated in favour of the purchaser, and that being the case, Ext.P2 order passed by the court in favour of the plaintiff applies with full force on the purchaser as well, and no application for injunction at his instance by a separate suit or otherwise could have been entertained by the court. The question whether the purchaser has come into possession by way of transfer could not have been gone into by the court as that transferee was bound by Ext.P2 order. The claim of injunction by the purchaser in his subsequent suit, it seems, was appreciated by both the courts below without taking into consideration that the transferee was bound by Ext.P2 order, and so much so, he was incompetent to set up any better right W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 12 or claim any relief nullifying Ext.P2 order. No order of injunction had been passed on the date the transfer was made on the application of plaintiff has least significance as the very purpose of injunction is to maintain statusquo of the subject matter, which, no doubt, relates back to the date of filing of the application for interim injunction. Since the transferee is bound by Ext.P2 order, and in case, that order is found unassailable and unimpeachable on the materials placed and the facts and circumstances presented, interference over the property by the defendant or the purchaser subsequent to the suit cannot be permitted by a court of law, and if any such meddling with the property was found made, needless to point out, the court has to pass appropriate orders to restore the statusquo ante. No application from the plaintiff need be insisted for passing such orders as such interference or meddling amounts to flouting of the authority and majesty of the court. It is also open to the court even to pass orders to appoint a receiver over the property in case it is found that Ext.P2 order passed by the learned Munsiff does not call for any interference. Exts.P7 and P8 judgments rendered by the W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 13 learned Sub Judge, in the given facts and circumstances presented in the case, cannot be sustained, and they are liable to be set aside. I do so. 7. So far as the writ petition, W.P.(C).No.32634 of 2009 filed by the defendant in O.S.No.1841 of 2007 challenging the order passed by the learned Munsiff allowing the amendment application moved by the plaintiff to furnish better particulars of adverse possession is concerned, I find no interference by exercise of the visitorial jurisdiction vested with this Court is called for. The fact that a plea of adverse possession was canvassed without furnishing specific particulars as to when it commenced is not a ground by itself to disallow the application for amendment made by the plaintiff to furnish such particulars in his plaint. The amendment sought for by the plaintiff and allowed by the learned Munsiff does not call for any interference, and so much so, that writ petition fails. W.P.(C).No.32634 of 2009 is dismissed. W.P.(C).NOS.32419 & 32423 OF 2008 & W.P.(C).NO.32634 OF 2009 14 W.P.(C).No.32419 of 2008 and W.P.(C).No.32423 of 2008 are allowed directing the learned Sub Judge to consider C.M.A.Nos.21 and 25 of 2008 afresh taking note of the observations made above and dispose them in accordance with law, as expeditiously as possible, at any rate, within one month from the date of receipt/production of a copy of this judgment. S.S.SATHEESACHANDRAN JUDGE prp