IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 WP(C).No. 26564 of 2010(O) ------------------------- OS.32/2009 OF MUNSIFF COURT, QUILANDY .......................................................................... PETITIONER: ----------------- MAVULLAKANDY ABDUL KAREEM, S/O.ABU, AGED 49 YEARS, SWASTHAM, UNIKULAM AMSOM, KANTHAPURAM DESOM, KOYILANDY TALUK. BY ADVS. SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA RESPONDENT(S): ------------------------ 1. PUTHUKKUDI ALI, RESIDING AT VADKKE NEROTH, SWASTHAM, AGED 49 YEARS, S/O.AYAMADKUTTY HAJI, IYYAD AMSOM, MANGAD DESOM, SIVAPURAM VILLAGE, KOYILANDY TALUK, PIN-691 015. 2. KANNANNOOR MUJEEB RAHIMAN, S/O.IBRAHIM HAJI, AGED 45 YEARS, SWASTHAM, IYYAD AMSOM, MANGAD DESOM, SIVAPURAM VILLAGE, KOYILANDY TALUK, PIN-691 015. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn THOMAS P JOSEPH,J. --------------------------------------- W.P(C).NO. 26564 OF 2010 ------------------------------------------ Dated this the 2nd day of September, 2010. JUDGMENT Plaintiff in O.S.No.32 of 2009 of the court of learned Munsiff, Koyilandy is the petitioner before me. He is aggrieved by Ext.P9, order of learned Munsiff and P10 judgment of the learned Sub Judge, Koyilandy. Petitioner sued respondents for a decree for prohibitory injunction against trespass into the suit property. Petitioner claimed title and possession over the said property. Petitioner filed I.A.No.116 of 2009 for an order of temporary injunction. Learned Munsiff passed an oder of Injunction on I.A.No.116 of 2009. On that application, respondent No.2 initially remained exparte while respondent No.1 contested application. While so, the exparte order against respondent No.2 was set aside and he resisted I.A.No.116 of 2009. He filed I.A.762 of 2009 for an order of temporary injunction against petitioner. Learned Munsiff heard I.A.762 of 2009 and observing that there is some dispute regarding title and possession of the property, directed parties to maintain statues quo not to make construction in the disputed property until it is correctly identified and not to commit waste W.P(C).NO. 26564 OF 2010 2 therein. I.A.No.762 of 2009 filed by respondent No.2 was disposed of as above. Accordingly, order on I.A.No.116 of 2009 was modified. Petitioner challenged the impugned order before the learned Sub Judge in C.M.A.No.7 of 2009. Learned Sub Judge made an observation that property scheduled in I.A.No.116 of 2009 is different from the property scheduled in I.A.No.762 of 2009 and concurred with the view taken by the learned Munsiff. The said order and judgment are under challenge. Learned counsel for petitioner contends that since the order on I.A.116 of 2009 had become final, learned Munsiff could not have modified the said order. It is also contended that on the materials on record, claim made by respondent No.2 over the suit property is not acceptable and hence courts below were not correct in interfering with the order on I.A.116 of 2009. 2. I have gone through the materials placed before me and heard learned counsel for petitioner. Ext.A1 to A8 (marked in the trial court) are relied on respondent No.3. Petitioner relied on Exts.B1 to B18. Ext.B1 is the document of title relied on by petitioner. As per that document property is comprised in old survey Nos.33/4 and 33/6 and Re-survey No.27/2 while, Exts.B2 to B5, it is prior documents say that property is comprised in Resurvey W.P(C).NO. 26564 OF 2010 3 No.27/1B. On the other hand, respondent No.2 produced Ext.A4, Adangal extract where resurvey No. corresponding to old survey Nos.33/4, and 33/6 is stated as Rs.No.27/1B. Respondent No.2 wanted to point out that petitioner has no right, title or interest over property comprised in resurvey No.27/2. It is in the light of the above controversy which according to the learned Munsiff required evidence for proper identification of the property that learned Munsiff directed parties to maintain statues quo. Learned counsel argued from the report of the Advocate Commissioner that respondent No.2 could not even point out the property he claimed to the Commissioner. But that is a matter for evidence. It is for the petitioner to prove that he has title and possession over the suit property. Having regard to the above controversy and discrepancy, I do not find reason to interfere with the said order of the learned Munsiff. 3. Then the question is whether learned Munsiff could modify the order of injunction passed on I.A.116 of 2009. No doubt, an order of injunction was passed on that application but it is thereafter, that learned Munsiff disposed of I.A.762 of 2009. Learned Munsiff could not have passed contradictory orders on the respective applications for injunction preferred by petitioner and respondent W.P(C).NO. 26564 OF 2010 4 No.2 allegedly in respect of very same property. It is in the above circumstances that learned Munsiff modified the order of injunction on I.A.116 of 2009 also which having regard to the inherent power vested in the Court under Section 151 of the Code, I am not pursued to think was without jurisdiction. 4. Learned counsel has pointed out that learned Sub Judge made certain observations as to the right of petitioner in the suit property. I make it clear that whatever observations are made by the learned Munsiff and the learned Sub Judge or contained in this judgment will be confined to the disposal of I.A.Nos.116/2009 and 762 of 2009 and that learned Munsiff has to decide the suit untrammeled by any such observation. 5. Learned counsel has stated before me that petitioner wants an early decision on the disputed questions as petitioner intents to construct building in the suit property. Considering the urgency pointed out, I direct learned Munsiff to dispose of the suit as early as possible. This writ petition is disposed of with the above directions. THOMAS P JOSEPH,JUDGE. pm