IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 WP(C).No. 3567 of 2010(O) AGAINST THE ORDER DATED 12/01/2010 IN CMA NOS. 27, 28 & 29 OF 2008 of SUB COURT,ATTINGAL .................... PETITIONER: (IST RESPONDENT/PLAINTIFF):- SHANAVAS, SHAMEER MANZIL, MADAVILAKAM, ALUMMOODU, KANIYAPURAM, KAZHAKUTTOM, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA SRI.K.M.ALEXANDER RESPONDENTS: APPELLANTS 1 TO 3 AND RESPONDENTS 2 TO 4/ DEFENDANTS 1, 5, 6, 2, 3 & 4): 1. JAHANGIR, NAJIM SHAH MANZIL, MADAVILAKAM, ALUMMOODU, KANIYAPURAM VILLAGE, PALLIPPURAM VILLAGE, KAZHAKUTTOM, THIRUVANANTHAPURAM. 2. SAINABA BEEVI, NAJIM SHAH MANZIL, MADAVILAKAM, ALUMMOODU, KANIYAPURAM VILLAGE, PALLIPPURAM VILLAGE, KAZHAKUTTOM, THIRUVANANTHAPURAM. 3. LATHEEFA BEEVI, NAJIM SHAH MANZIL, MADAVILAKAM, ALUMMOODU, KANIYAPURAM VILLAGE, PALLIPPURAM VILLAGE, KAZHAKUTTOM, THIRUVANANTHAPURAM. 4. NISTHAR, BASHEER MANZIL, MADAVILAKAM, ALUMMOODU, KANIYAPURAM PALLIPPURAM VILLAGE, KAZHAKUTTOM, THIRUVANANTHAPURAM. 5. MIRJAFAR, MADAVILAKOM VEEDU, ALUMMOODU, KANIYAPURAM, PALLIPPURAM VILLAGE, KAZHAKUTTOM, THIRUVANANTHAPURAM. 6. SULFIKAR, AL-MINARA MANZIL, ALUMMOODU, KANIYAPURAM, PALLIPPURAM VILLAGE, KAZHAKUTTOM, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- W.P.(C). No. 3567 of 2010 ---------------------------------------------------- Dated this the 5th day of February, 2010. JUDGMENT The plaintiff in O.S. No. 203 of 2007 on the file of the Munsiff's Court, Attingal is the writ petitioner. He challenges Ext.P9 common judgment in C.M.A. Nos. 28 and 29 of 2008 passed by the Sub Court, Attingal. The aforementioned suit is one for a declaration that the inclusion of the plaint schedule property as item No. 1 of B schedule to a registered partition deed, gift deed and release deed is void and not binding on the plaintiff or the plaint schedule property and that the plaintiff and his successors are legally entitled to the said property. 2. Pending suit, the petitioner filed Ext.P5 application for interim injunction against alienation and Ext.P6 application for the appointment of a receiver. The contesting defendants also filed an application for an injunction against the plaintiff. As per Ext.P7 order dated W.P.(C) No. 3567/2010 : 2 : 21.08.2008, the trial court passed an order of injunction in terms of Ext.P5 petition and disallowed the injunction prayed for by the contesting defendants. As per Ext.P8 order, the trial court appointed a panel receiver in respect of the property which was possessed by defendants 1, 4 and 6. The contesting defendants filed three separate appeals before the Sub Court, Attingal. As per Ext.P9 common judgment dated 12.01.2010, the lower appellate court allowed the appeals and directed the panel receiver to hand over possession of the property back to the respective defendants who were in possession of the same and reversed Exts.P7 and P8 orders and granted interim injunction as prayed for by the contesting defendants. It is aggrieved by the said common judgment that the plaintiff has come before this Court. 3. When the property was not in medio and there was no scramble for possession, the trial court was wrong in appointing a receiver in respect of the property and thereby W.P.(C) No. 3567/2010 : 3 : dispossessing defendants 1, 4 and 6 of the portions possessed by them. Even assuming that a case was made out for the appointment of a receiver, the appointment of a panel receiver was certainly not justified. The lower appellate court was also fully justified in granting the injunction prayed for by the contesting defendants. I do not find any good ground to interfere with Ext.P9 common judgment passed by the lower appellate court. The learned counsel for the petitioner submitted that this is a fit case where defendants 1, 4 and 6 ought to have been at least appointed as the party receivers with a duty to account for the income from the properties. That is a matter which will have to be considered if an application in that behalf is filed before the trial court. The learned counsel for the petitioner also submitted that the observation by the lower appellate court that the suit itself is bad for non joinder of necessary parties and therefore not maintainable, may not be justified since the mosque in W.P.(C) No. 3567/2010 : 4 : question had itself come forward with an application for impleadment and the same is pending before the trial court. That again is a matter which the trial court will have to consider. I, therefore, dismiss this writ petition challenging Ext.P9 common judgment. The trial court shall dispose of the suit untramelled by any of the observations or findings in the impugned judgment as well as in the orders of the trial court. Dated this the 5th day of February, 2010. V. RAMKUMAR, JUDGE. rv W.P.(C) No. 3567/2010 : 5 :