IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 OPC.No. 4213 of 2011 (O) ======================== I.A.NO.1133/2011 IN OS.NO.20/2011 of SUB COURT, QUILANDY ----------------------- PETITIONER(S)/PETITIONER ======================== 1. O.C.NARAYANAN NAIR, S/O. RAMAN NAIR, THEKKEPARAMBIL HOUSE, PURAYANKOTT MAHA SIVA KSHETHRA, PRESIDENT, KOOTHALI AMSOM, DESOM, KOYILANDY TALUK. 2. V.BALAKRISHNAN NAIR, S/O. CHATHU NAIR, PURAYANKOTT MAHA SIVA KSHETHRA COMMITTEE SECRETARY, CHAYIKULANGARA HOUSE, PERAMBRA KOOTHALI AMSOM, DESOM, KOYILANDY TALUK. 3. KARUNAKARAN.P.P., S/O. KANNAN, PURAYANKOTT MAHA SIVA KSHETHRA COMMITTEE MEMBER, VATTAKAPARAMBIL HOUSE, PERAMBRA KOOTHALI AMSOM, DESOM, KOYILANDY TALUK. 4. SOMAN, S/O. ANANDAN NAIR, KINARULLAKANDY HOUSE, PURAYANKOTT MAHA SIVA KSHETHRA COMMITTEE MEMBER, PERAMBRA KOOTHALI AMSOM, DESOM, KOYILANDY TALUK. 5. PREMADASAN, S/O. BALAKRISHNAN KURUP, PUTHENPURACKAL HOUSE, SIVA KSHETHRA COMMITTEE MEMBER, PERAMBRA KOOTHALI AMSOM, DESOM, KOYILANDY TALUK. 6. NARAYANAN NAIR, S/O. KUNHIRAMAN NAIR, MANIKKOTH HOUSE, SIVA KSHETHRA COMMITTEE MEMBER, PERAMBRA KOOTHALI AMSOM, DESOM, KOYILANDY TALUK. BY ADV.SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA sts 2/- -2- OP(C)NO.4213/2011 RESPONDENT(S) =============== 1. BALAKRISHNAN NAIR, S/O. KUNHIKANNAN NAIR, EDAPARAMBIL HOUSE, KOOTHALI AMSOM, DESOM,KOYILANDY TALUK-673 526. 2. O.P.NARAYANAN, S/O. ANANDAN NAIR, KALIYAMBILAYI HOUSE, PERAMBRA AMSOM KILIYAMBILAYI DESOM, KOYILANDY TALUK-673 528. 3. SANKARAN NAIR, S/O. RAMAN NAIR, PALAKKANDATHIL HOUSE, KOOTHALI AMSOM, DESOM, KOYILANDY TALUK-673 532. 4. BALAKRISHNAN, S/O. KUNHIRAMAN NAIR, KUTIPARAMBIL HOUSE, KOOTHALI AMSOM, DESOM, KOYILANDY TALUK-673 532. BY ADV.SRI.N.V.RAMACHANDRAN SRI.K.I.MAYANKUTTY MATHER SMT.RUKHIYABI MOHD KUNHI THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.4213/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE SETTLEMENT REGISTER (RELEVANT PAGE). P2 COPY OF THE PLAINT IN O.S.20/11 ON THIS FILE OF SUBORDINATE JUDGES COURT, QUILANDY. P3 COPY OF THE WRITTEN STATEMENT FILED BY PETITIONERS IN O.S.20/11 ON THE FILE OF SUBORDINATE JUDGES COURT, QUILANDY. P4 COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENT 2 TO 4 IN O.S.20/11 ON THE FILE OF SUBORDINATE JUDGES COURT, QUILANDY. P5 COPY OF THE CERTIFICATE DATED 31/01/2011 ISSUED BY THE VILLAGE OFFICE, PERAMBRA. P6 COPY OF THE NOTICE & RELEVANT PAGES OF BOOKLET IN RESPECT OF THE FESTIVAL. P7 COPY OF THE APPLICATION (IA 1133/11) FILED IN THE O.S.20/11 ON FILE OF SUBORDINATE JUDGES COURT, QUILANDY. P8 COPY OF THE COUNTER FILED BY THE 1ST RESPONDENT. P9 COPY OF THE COMMISSIONERS REPORT AND PLAN SUBMITTED IN O.S.20/11 ON THE FILE OF THE SUBORDINATE JUDGES COURT, QUILANDY. P10 COPY OF THE ORDER DATED 13/12/2011 IN IA.1133/11 ON THE FILE OF SUBORDINATE JUDGES COURT, QUILANDY. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL, PERAMBRA IN SM 6050/1975,DATED 18/12/1976. R1(B) COPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL, PERAMBRA IN SM 6049/1975, DATED 18/12/1976. R1(C) COPY OF THE AGREEMENT ENTERED INTO BETWEEN 1ST RESPONDENT HEREIN AND TEMPLE COMMITTEE, DATED 26/8/2002. R1(D) COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, DATED 5/2/2011. R1(E) COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, DATED 5/3/2011. R1(F) COPY OF THE EYE-SKETCH PRODUCED BY THE COUNSEL FOR DEFENDANTS ALONG WITH IA 311/2011,DATED NIL. R1(G) COPY OF THE ORDER PASSED BY THE SUB COURT, KOYILANDY IN IA NO.311/2011, DATED 25/2/2011. /TRUE COPY/ sts P.S.TO.JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4213 of 2011 ==================================== Dated this the 23rd day of December, 2011 J U D G M E N T Exhibit P10, order passed by the learned Sub Judge, Quilandy on 13.12.2011 on I.A. No.1133 of 2011 in O.S. No.20 of 2011 is under challenge at the instance of petitioners-defendants 1 to 4, 6, 7 and 9. 2. First respondent filed the suit for a decree for prohibitory injunction against petitioners and respondents 2 to 4 trespassing into plaint schedule item Nos.1 and 2, item No.1 being 1.1¾ acres and item No.2 being 75 cents in Sy. No.7/3 and R.S. No.12/B of Perambra Village. First respondent claimed that suit property belonged to his father who gifted the same to him in the year, 1973 following which he got purchase certificates from the Land Tribunal as evidenced by Exts.R1(a) and R1(b). Apprehending trespass by petitioners and respondents 2 to 4, first respondent filed the suit and moved application for temporary injunction as I.A. No.137 of 2011. On that application an ex parte, interim order of injunction was granted against petitioners and respondents 2 to 4 on 24.11.2001 restraining O.P(C) No.4213 of 2011 -: 2 :- them from trespassing into the suit property. I am told that though petitioners had preferred objection to that application the same was not disposed of finally whatever be reason thereof. In the meantime petitioners filed I.A. No.1133 of 2011 seeking permission of learned Sub Judge to use the suit property in connection with the festival in the temple commencing from 25.12.2011 and ending by 01.01.2012. Petitioners contended that the suit property formed part of property belonging to Purayangodu Maha Shiva temple and that first respondent has no title or possession of the suit property. It is also their contention that earlier, first respondent held the posts of President and Secretary of the temple committee and he was constrained to surrender 2.02 cents of land belonging to the temple which he had taken unauthorized possession. Enraged at that, first respondent filed the present suit to harass petitioners. 3. First respondent objected to I.A. No.1133 of 2011. First respondent contended that petitioners have no right, title, interest or possession of the property which remains with the first respondent by virtue of gift deed executed by his father, followed by the purchase certificate issued in his favour by the Land Tribunal. He also contended that on a prior occasion O.P(C) No.4213 of 2011 -: 3 :- petitioners had filed similar application to use the suit property in connection with the Shivarathri festival and that request was turned down by the learned Sub Judge by Ext.R1(g), order dated 25.02.2011 but that order was not challenged. 4. Learned Sub Judge was impressed by the contention raised by the first respondent and dismissed I.A. No.1133 of 2011. That order is under challenge. 5. Learned counsel for petitioners contended that first respondent has committed fraud in that though there is no property comprised in R.S No.12/2B in Perambra Village, first respondent has mischievously shown the suit property as comprising in that survey number. Reliance is placed on Ext.P5, certificate issued by the Village Officer, Perambra on 31.01.2011 that there is no Resurvey number 12/2B in that Village. It is also contended by learned counsel that even on prior occasions suit property was being used in connection with the festival in the temple. Learned counsel has submitted that if allowed to use the suit property in connection with the festival, petitioners will not cause any damage to the property and that property will be restored to the first respondent in the condition it is. 6. Learned counsel for respondents 2 to 4 O.P(C) No.4213 of 2011 -: 4 :- supplemented arguments of petitioners. Learned counsel pointed from Ext.P9, plan that only the portion marked as plot No.2 is sufficient for the time being to facilitate conduct of the festival. Learned counsel also contended that the said portion was used in connection with the festival of the temple on previous occasions. 7. In response learned counsel for first respondent contended that the fact that first respondent was in peaceful possession and enjoyment is admitted by the temple authorities as revealed from Ext.R1(c), agreement executed between the first respondent and the office bearers of temple committee. It is pointed out that a reading of Ext.R1(c) would show that first respondent in peaceful possession and enjoyment of property having derived it by way of gift and further that whether correct or not, even in Ext.R1(c), certificate survey number of the property is shown as 7/3 and resurvey No.12/2B. It is pointed out by learned counsel from Ext.R1(c) that violating the interim order of injunction petitioners and men trespassed into the suit property and committed mischief even at the risk of their going to the jail. Learned counsel pointed out that petitioners even asserted that they will in violation of the order of injunction do O.P(C) No.4213 of 2011 -: 5 :- whatever in the suit property for the welfare of the temple even at the risk of going to the jail. 8. Now that the court below is yet to consider the claim and the rival claim made by the parties I am not required to go into that question. Question is whether having regard to the circumstances stated petitioners are to be permitted to use the suit property or any portion thereof for the purpose of festival. A contention is raised that there is no property in R.S. No.12/2B as stated in the plaint and as certified by the Village Officer. It is seen from Ext.R1(g) that with respect to the land surrendered by the first respondent the survey number is given as 7/3 and resurvey number as 12/2B. According to the learned counsel for petitioners, that agreement is under challenge. But that is a matter to be decided in evidence. As it is seen, it would appear that R1(g), agreement is executed between first respondent and the then office bearers of the temple committee. That document shows that first respondent, on a request made by the office bearers of the temple committee surrendered free of cost to the temple, 2.02 cents. In Ext.R1(g) it is stated that rest of the property (obviously referring to the suit property as it would appear to me) is in the possession and enjoyment of the first O.P(C) No.4213 of 2011 -: 6 :- respondent he having acquired the same from his father. For the time being Ext.R1(g) must stand. 9. When it is prima facie shown that property belongs to and is in the possession of the first respondent, request for permission to conduct festival in any portion of the said property when it is vehemently opposed by the first respondent cannot be allowed. I must also bear in mind that on a previous occasion request for use of portion of the suit property was disallowed by the learned Sub Judge. True, according to the petitioners they could not challenge that order for want of time since in the meantime the festival had to be conducted. 10. Having regard to the various circumstances stated I am not inclined to think that when an order of injunction though ex parte is remaining in force and having regard to the various circumstances above stated, petitioners must be given permission sought for. I that view of the matter I do not find reason to interfere with Ext.P10, order. 11. I make it clear that I have not expressed any final opinion regarding the rival contentions made by the parties and that I have only referred to the documents before me as they stand. It is for the trial court to decide whether those documents O.P(C) No.4213 of 2011 -: 7 :- are to be accepted or not. Learned Sub Judge is directed to dispose of the application for injunction as early as possible. Original Petition is dismissed with the above direction and clarification. THOMAS P. JOSEPH, JUDGE. vsv