IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 OP(C).No. 2467 of 2011(O) -------------------------------------- CMA.14/2010 of DISTRICT COURT,THODUPUZHA OS.NO. 27/2010 of MUNSIFF COURT,THODUPUZHA .................... PETITIONER -------------------- 1. K.E.PRABHAKARAN, S/O.LATE EACHARAN, KUZHINJAKALLUMKAL HOUSE, KOLANI KARA, PARAKADAVU BHAGOM, THODUPUZHA VILLAGE & TALUK. 2. K.P.ROY, S/O.LATE EACHARAN, KUZHINJAKALLUMKAL HOUSE, KOLANI KARA, PARAKADAVU BHAGOM, THODUPUZHA VILLAGE & TALUK. 3. P.D.CHANDRAN, S/O.DAMODARAN, PULICKAKUNNEL HOUSE, KUNINJI KARA, PURAPPUZHA VILLAGE, THODUPUZHA TALUK. 4. PAPPA, S/O.KUJAN, VETTIKATTIL HOUSE, ANICADU KARA, AVOLI VILLAGE, MUVATTUPUZHA TALUK. 5. BINU, S/O.KESAVAN, PEPPATHICKAL HOUSE, WEST KODIKULAM, KODIKULAM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): ---------------------------- SIVASUDHA, W/O.LATE SASI, KUZHINJAKALLUMKAL HOUSE, KOLANI KARA, PRAKADAVU BHAGOM, THODUPUZHA VILLAGE & TALUK. BY ADV. SMT.S.KARTHIKA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2467/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT DATED 2/2/2010 BY THE RESPONDENT. P2 COPY OF THE AFFIDAVIT AND PETITION DATED 2/2/2010 BY THE RESPONDENT P3 COPY OF THE COUNTER AFFIDAVIT DATED 15/2/2010 BY THE 1ST PETITIONER. P4 COPY OF THE REPLY AFFIDAVIT FILED BY THE RESPONDENT DATED 25/2/2010. P5 COPY OF THE WILL DATED 12/12/1994 P6 COPY OF THE SALE DEED DATED 17/8/1976. P7 COPY OF THE PHOTO IDENTITY CARD. P8 COPY OF THE DOCUMENT NO.2420/1991. P9 COPY OF THE ORDER DATED 6/3/2010 IN I.A.NO.220/10 IN O.S.NO.27 OF 2010. P10 COPY OF THE JUDGMENT DATED 17/5/2010 IN WP(C)NO.14750 OF 2010. P11 COPY OF THE JUDGMENT DATED 27/6/2011 IN CMA NO.14 OF 2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2467 of 2011 -------------------------------------- Dated this the 10th day of August, 2011. JUDGMENT This Original Petition arises from the judgment of learned District Judge, Thodupuzha in C.M.A. No.14 of 2010 confirming the order of injunction passed by learned Munsiff, Thodupuzha on I.A.No.220 of 2010 in O.S.No.27 of 2010 of that court. The suit concerns property which originally belonged to the late Eacheran, father-in-law of respondent/plaintiff. According to the respondent, the said Eacheran acquired that property as per document No.2560 of 1102 ME. and executed an unregistered Will dated 10.12.1994 in favour of Sasi, the deceased husband of respondent bequeathing the said property to him. The wife of Eacheran pre-deceased him and Sasi died on 30.07.2009. Thus, respondent became the absolute owner in possession of the property. She filed O.S.No.27 of 2010 for a decree for permanent prohibitory injunction to restrain petitioners trespassing into the suit property, tampering with its boundaries and committing acts of waste therein. She moved I.A.No.220 of 2010 along with the suit for an order of temporary injunction. Learned Munsiff granted interim injunction and later the order was made absolute. Petitioners challenged that order in C.M.A.No.14 of 2010 . When the learned District Judge refused to grant stay of operation of that order, petitioners approached this Court in W.P.(C) No.14750 of 2010. This Court disposed of that Writ Petition directing the appellate court to consider the genuineness of the Will (in the C.M.Appeal) and at the same time OP(C) No.2467/2011 2 directing the respondent to file statement of account regarding the income from the property until disposal of the C.M.Appeal. The C.M.Appeal was considered by the learned District Judge. Learned District Judge observed that genuineness of the Will cannot be decided in the C.M.Appeal arising from an order of temporary injunction. However, learned District Judge observed that even otherwise respondent is shown to be, prima facie in possession of the property, she is entitled to protect it and get an order of injunction. After consideration of the materials learned District Judge confirmed the order of injunction passed by learned Munsiff. That judgment is under challenge. Learned counsel for petitioner contends that respondent places reliance on an unregistered Will of the year, 1994 which did not see the light of the day till the suit was filed in the year 2010. It is contended that the learned District Judge has not complied with the direction in the judgment in W.P.(C) No14750 of 2010 to decide genuineness of the Will while considering the C.M.Appeal. 2. Learned counsel for respondent has contended that on the materials on records courts below are justified in granting temporary injunction. It is pointed out that though Eacheran died on 04.08.2001, no claim was made by any of the petitioners until now which also indicates ownership and possession of the respondent over the property based on the Will. 3. So far as learned District Judge not deciding the genuineness of OP(C) No.2467/2011 3 the Will in question is concerned, true that in the judgment in W.P.(C) No.14750 of 2010 this Court directed the appellate court to decide that issue. But, I must bear in mind that being a C.M.Appeal the appellate court has its own limitation in deciding genuineness of the Will in question which if disputed has to be proved in the manner stated in Sec.68 of the Evidence Act and Sec.63 of the Indian Succession Act. There might have been an omission in the judgment of this Court to mention that appellate court has to consider “prima facie” the genuineness of the Will in question but, that does not mean that learned District Judge while deciding the C.M.Appeal was required to decide the genuineness of the Will. That certainly was a matter to be decided at the time of trial. Learned District Judge is right in holding so. It is also to be borne in mind that wife of one of the (alleged) attestors in the Will filed an affidavit that her husband had told her that he had attested a Will executed by Eacheran in favour of Sasi. These circumstances were taken into account by the learned District Judge. 4. I must also understand the scope of Article 227 of the Constitution of India to interfere with the concurrent finding entered by the courts below. The supervisory power under Article 227 of the Constitution is to ensure that the subordinate courts did not travel beyond their bounds, did not fail to exercise jurisdiction it has, or did not exercise jurisdiction in a wrong manner. Even the appellate court could interfere with a discretionary order of the trial court only if OP(C) No.2467/2011 4 the order is arbitrary, capricious or perverse. Appellate court cannot substitute its view to that of the trial court for the reason that such a view is also possible. 5. Having regard to the facts and circumstances I do not find reason to interfere with the judgment of learned District Judge. But at the same time the right which petitioners claim in the property has also to be protected. Learned counsel for petitioners submitted that as per direction in the judgment in W.P.(C) No.14750 of 2010 respondent has been filing statements until disposal of the C.M.Appeal but showing loss notwithstanding that the property is giving much income. It is also submitted that in the judgment in C.M.Appeal learned District Judge directed to dispose of the suit within seven months from the date of judgment. It is requested that a direction may be issued to the learned Munsiff to dispose of the suit within the shorter period. 6. Without understanding the volume of work of the court concerned and the priority for disposal of older cases I do not think it appropriate to direct the trial court to dispose of the suit within a shorter time than directed by the learned District Judge. I make it clear that it does not mean that the trial court cannot dispose of the suit within a shorter period if that is possible. It is open to the learned Munsiff to consider the request of petitioners to that effect. 7. So far as statement being filed by the respondent is concerned, it is directed that she shall continue to file such statements in the trial court until disposal of the suit. I also make it clear that it is open to the petitioners to OP(C) No.2467/2011 5 dispute correctness of the statement thus filed. The question as to whom the profits (if any) from the properties should give and in what manner, is left to be decided by the trial court as provided under law, at the time of disposing the suit. Original Petition is disposed of with the above observations. THOMAS P.JOSEPH, Judge. cks