IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 WP(C).No.3535 of 2009 (U) -------------------------------- CMA.106/2007 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.22/2007 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONERS: ----------------- 1. SHEFANA, D/O.MOHAMMED SHERIF, PARTNER, M/S.UNIVERSAL GROUP, MOTOR PLAZA BUILDING, SREEKARYAM, CHERUVIKKAL, THIRUVANANTHAPURAM. 2. SALIM.M.KABEER, S/O.MOHAMMED KABIR, PARTNER, M/S. UNIVERSAL GROUP, DO. 3. M/S.UNIVERSAL GROUP, MOTOR PLAZA BUILDING, REPRESENTED BY ITS PARTNER, T.C.1416(1) SREEKARYAM, CHERUVIKKAL, THIRUVANANTHAPURAM. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.C.S.MANILAL SMT.SHAHNA KARTHIKEYAN RESPONDENTS: ------------------ 1. VIJAYAMMA, D/O.CHINNAMMA, RESIDING AT T.C.14/342, PALAYAM, TRIVANDRUM. 2. LATHAKUMARI, D/O.VIJAYAMMA, RESIDING AT DO. 3. SULATHA KUMARI, D/O.VIJAYAMMA, DO. 4. ABDUL SALIM, S/O.MUHAMMED PILLAI, VILAYIL VEEDU, AZHOOR, PERUMKUZHI, TRIVANDRUM. SRI.G.S.REGHUNATH - R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.3535 of 2009 ------------------------------------------------ Dated this the 3rd day of February, 2009 JUDGMENT This Writ Petition has been filed by defendants 1 to 3 in O.S.22/07 on the file of the Sub Court, Thiruvananthapuram. The suit is one filed by the respondents 1 to 3 for a decree declaring that purchase certificate issued in S.M.P.3/05 by the Land Tribunal, Thiruvananthapuram and Sale Deed created on the strength of the said purchase certificate are fraudulently created and not binding on the plaintiffs and that they are the absolute owners of the scheduled property; for a decree of mandatory injunction directing defendants 1 to 4 to vacate the building bearing T.C.14/497 described in 'D' schedule to the plaint and for a decree of prohibitory injunction restraining defendants 1 to 4 who are the petitioners and the fourth respondent herein W. P. C. No.3535 of 2009 -2- from trespassing into the scheduled properties and committing any acts of waste therein and from making any construction in the said properties so as to change its present nature and condition. Petitioners filed Ext.P2 written statement and resisted the suit. 2. It is submitted that respondents 1 to 3 had filed two interlocutory applications one for prohibitory injunction (I.A.162/07) and the other for a mandatory injunction (I.A. 161/07) directing the respondents to vacate the scheduled building and that Ext.P14 is the common order passed by the trial Judge granting both prohibitory injunction as well as mandatory injunction prayed for directing defendants who are petitioners and the fourth respondent herein to vacate the building bearing T.C.14/497 described in 'D' schedule to the plaint and to handover vacant possession of the same within a period of 30 W. P. C. No.3535 of 2009 -3- days from the date of the order. The said order is passed on 28/09/07. As against the mandatory injunction granted on I.A.161/07 the petitioners filed C.M.A.106/07 and as against the prohibitory injunction granted on I.A.162/07, the petitioners filed C.M.A. 107/07. On an interim order passed in C.M.A.106/07 on I.A.3048/07, the petitioners took up the matter to this Court filing W.P.C.24177/08 and this Court vide Ext.P15 judgment disposed of the Writ Petition directing the District Judge to dispose of the C.M. Appeal No.106/07 within three weeks from the date of receipt of a copy of the said judgment and keeping the mandatory injunction in abeyance till disposal of C.M. Appeal. Accordingly, the Additional District Judge passed common judgment in C.M.A. Nos.106/07 and 107/07 evidenced by Ext.P16 dt.18/12/08 dismissing both the appeals and confirming W. P. C. No.3535 of 2009 -4- Ext.P14 order passed by the court below. 3. It is submitted that as delivery of 'D' schedule building is not given to respondents 1 to 3 in compliance with the orders concurrently passed by the courts below, the court has ordered delivery being effected on 06/02/09 and to report on 07/02/09. It is assailing the said judgment that this Writ Petition is filed. 4. The prayer in this Writ Petition is to quash Exts.P14 common order passed by the Sub Judge in the suit and Ext.P16 common judgment passed by the Additional District Judge in the C.M. Appeals aforesaid. When it is brought to the notice of the counsel for the petitioner that only one Writ Petition is filed assailing judgments in two C.M. Appeals, counsel submits that this need be treated as a Writ Petition filed assailing only the judgment in C.M.A. 106/07 confirming grant of mandatory W. P. C. No.3535 of 2009 -5- injunction by the court below. 5. When this Writ Petition was admitted, Advocate Sri.G.S.Reghunath who entered appearance for respondents 1 to 3 vehemently opposed the grant of any interim order. According to him, the case is one which brings to light an instance where by exercise of fraud and display of force the petitioners have trespassed into the house in occupation of respondents 1 to 3 and that they may not be allowed any indulgence to continue in occupation. In the circumstances, arguments of counsel on both sides were heard. 6. According to counsel for the respondents 1 to 3, the said property having an extent of altogether 57 and a half (57 ½) cents with a building therein which was in residential occupation of respondents 1 to 3 was originally obtained by the first plaintiff under three documents viz. Exts.A1 to A3 dated W. P. C. No.3535 of 2009 -6- respectively 19/06/65, 10/07/67 and 01/11/72; that thereafter as per Ext.A4 settlement deed, she settled 12 cents of property in favour of the third plaintiff under Ext.A4 settlement deed of the year 1981 and 12.5 cents of property in favour of the second plaintiff under Ext.A5 settlement deed of 1982; that Exts.A6 series are tax receipts in favour of the plaintiffs; that Ext.A7 is ownership certificate issued by the Corporation of Thiruvananthapuram on 02/12/06; and that it is while the plaintiffs were thus in enjoyment of the scheduled property including the building respectively from the dates of Exts.A1, A2 and A3 that the fourth defendant in the suit who is the fourth respondent herein obtained Ext.P3 purchase certificate on 30/04/05 in a suo motu proceeding initiated as S.M.3/05 with respect to 30 cents of property comprised in Survey Nos.169/1, 169/1-1, 169/1-2 from out W. P. C. No.3535 of 2009 -7- of the schedule property without any notice to respondents 1 to 3 who are the plaintiffs in the suit and thereafter, the fourth defendant/ fourth respondent executed inter alia Exts.P4 and P5 sale deeds in favour of the petitioners transferring the properties covered by Ext.P3 purchase certificate and trespassed into the property as also into the building in the scheduled property of 57 ½ cents. According to counsel for respondents 1 to 3, the purchase certificate was being obtained fraudulently in collusion with one Ravindran who was the Land Tribunal/Special Tahsildar at the Land Tribunal at Vanchiyoor, Thiruvananthapuram. 7. It is submitted that the order was passed by the Land Tribunal in a case where the present respondents 1 to 3 were not parties though in Ext.P3 the names of respondents 1 to 3 are also later written up W. P. C. No.3535 of 2009 -8- and however, that Ext.P3 does not take in the residential building that was in occupation of respondents 1 to 3 as that is comprised in Sy. No.167 and not in Sy. No.169 of Thycaud village and that the petitioners were trespassing into the house when the first plaintiff was taken to the hospital by the second plaintiff who alone was then residing with the first plaintiff as the 3rd plaintiff who before transposition was the fifth defendant was out of station, probably under a misconception that the building is in Sy. No.169 and that ever thereafter they are continuing in occupation and the mandatory injunction order passed by the Sub Court as early as on 26/09/07 could not be implemented till date. 8. The counsel for the petitioners is unable to explain as to how the title over the scheduled property obtained by the first W. P. C. No.3535 of 2009 -9- plaintiff under Exts.A1 to A3 got executed during the years 1965, 1967 and 1975 respectively of which portions were settled in favour of the third plaintiff and the second plaintiff under Exts.A4 and A5 settlement deed respectively in 1981 and 1982 came to the predecessor of the petitioners as late as in 2005 under a purchase certificate issued in a suo motu proceeding registered in 2005 itself without any of respondents 1 to 3 being impleaded as a party. In the circumstances, the petitioners cannot prima facie be found to have any right over the scheduled properties or the building which is not even in the property over which their predecessor obtained purchase certificate despite being fraudulently. Their occupation of the house scheduled to 'D' schedule to the plaint is by wanton trespass taking law into their hands and they cannot be permitted to remain there W. P. C. No.3535 of 2009 -10- any further. To accept the contentions that they are entitled to continue in occupation till a decree is passed is to render the proceedings in a Civil Court a mockery and to ridicule. I see absolutely no reason why this Court is to interfere in this Writ Petition or to order stay of eviction of the petitioners who have come into occupation of the building by trespass and violence and are continuing in occupation by their might and challenging the rule of law. 9. This Writ Petition is dismissed with costs of Rs.2,500/- to respondents 1 to 3 (one set only). K.P.BALACHANDRAN, JUDGE kns/-