IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 12389 of 2010(O) -------------------------- CMA.11/2008 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.234/2008 of SUB COURT,NEYYATTINKARA .................... PETITIONER: --------------- S.B.LALITHA, D/O.BHAI, VALIYAVILA VEEDU, CHAVADI NADA, KOTTUKAL DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT: --------------- SATHEESH, S/O.DIVAKARAN, KUNNUVILA VEEDU, PAYATTUVILA, KOTTUKAL DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.G.SUDHEER FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12389 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.No.234/08, SUB COURT, NEYYATTINKARA EXHIBIT P2 : WRITTEN STATEMENT AND COUNTER CLAIM IN O.S.No.234/08, SUB COURT, NEYYATTINKARA EXHIBIT P3 : AFFIDAVIT and PETITION (I.A.1752/2008 IN O.S.No.234/08, SUB COURT, NEYYATTINKARA) EXHIBIT P4 : COUNTER FILED BY THE RESPONDENT IN I.A.1752/2008 IN O.S.No.234/08, SUB COURT, NEYYATTINKARA EXHIBIT P5 : ORDER, DATED 05-12-2008 IN I.A.1752/2008 IN O.S.No.234/08, SUB COURT, NEYYATTINKARA EXHIBIT P6 : JUDGMENT, DTD 16-02-2010 IN C.M.A.11/2009 DISTRICT COURT, THIRUVANANTHAPURAM RESPONDENT'S EXHIBITS : NIL True Copy THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.12389 of 2010 --------------------------------------- Dated this 08th day of November, 2010 JUDGMENT This petition is in challenge of judgment dated February 16, 2010 of learned Additional District Judge-I, Thiruvananthapuram in C.M.A.No.11 of 2009 confirming dismissal of I.A.No.1752 of 2008 in O.S.No.234 of 2008 of the court of learned Sub Judge, Neyyattinkara. O.S.No.234 of 2008 is a suit filed by petitioner claiming that in connection with a money transaction she had executed an assignment deed in favour of respondent as security for the money transaction. She claimed to be in possession and enjoyment of the property residing in the building situated thereon. It was also understood between parties that on repayment of the amount respondent shall re-convey the property. But respondent was not willing to re-convey the property to the petitioner and hence suit for specific performance of the alleged agreement for re- conveyance and for injunction against her forcible eviction from the suit property - 1.04 acres with the residential building thereon. Respondent contended that he purchased the suit property from petitioner for consideration and one Thomas Mathew as per the sale deed referred to in the plaint. He denied that the sale deed W.P(C).No.12389 of 2010 : 2 : was executed as security for money transaction. He also contended that at the time of execution of sale deed petitioner was permitted to stay in the building in the suit property till she found out alternative accommodation. Since petitioner has refused to vacate the building respondent filed a counter claim for recovery of possession of the building situated in the suit property. 2. Along with the suit petitioner filed I.A.No.1752 of 2008 for an order of injunction. Learned Sub Judge found that petitioner has not made out any prima facie case and by Ext.P5, order dismissed the application. That has been confirmed by learned District Judge by Ext.P6, order which is under challenge in this petition. Learned counsel contends that there are sufficient materials on record to show that petitioner is in possession of the entire suit property and at any rate it is admitted that petitioner is residing in the building and hence courts below should have granted relief atleast as regards her residence in the building in the suit property. Learned counsel for respondent contends that petitioner has suppressed material facts. Petitioner had filed O.S.No.155 of 2000 in the Munsiff's Court for a decree of prohibitory injunction against respondent which was dismissed for default and the application for restoration also ended in a dismissal. W.P(C).No.12389 of 2010 : 3 : 3. So far as the claim of petitioner regarding possession of the entire property is concerned, it is on record that she has executed a sale deed in favour of the respondent. Whether, it was as a security for any money transaction and she continued to be in possession of the property are to be decided after trial. Courts below were not inclined to accept contention of petitioner at the interlocutory stage in the light of evidence on record. I do not find reason to interfere with that finding at this stage. 4. Learned counsel for petitioner contended that at any rate, courts below should have granted relief to the petitioner as regards residence in the building in the suit property. It is admitted that petitioner is now occupying the building in the suit property be it in the way contended by petitioner or as pleaded by the respondent she was permitted to stay there until alternative accommodation is found out. Respondent has also made a counter claim for recovery of possession of the building from the petitioner. In the circumstances, it is only just and proper that petitioner is allowed to occupy the building in the suit property without interference from the respondent. Resultantly this petition is allowed in part to the extend that respondent is directed not to interfere with the residence of petitioner in the building in the suit property until disposal of the W.P(C).No.12389 of 2010 : 4 : suit. Learned Sub Judge is directed to dispose of the suit as early as possible subject of course to priority to be given to other urgent, old or targeted cases. (THOMAS P JOSEPH, JUDGE) Sbna/-