IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 15395 of 2009(O) -------------------------- CMA.12/2009 of D.C.& SESSIONS COURT,THODUPUZHA OS.11/2009 of SUB COURT,THODUPUZHA .................... PETITIONER(S): --------------- VIJAYAKUMAR, S/O.THANKAPPAN NAIR, PLATHOPPIL HOUSE, MARAYOOR COLONY, MARAYOOR VILLAGE, DEVIKULAM TALUK. BY ADVS. MR.MATHEW JOHN (K), MR.AJEESH K.SASI. RESPONDENT(S): --------------------------- 1. THYAGARAJAN, S/O.SUNDERRAJ, THYAGARAJAN HOUSE, MARIVAYAL KARA, MARAYOOR VILLAGE, DEVIKULAM TALUK. 2. SOMABAI, W/O.THYAGARAJAN, DO. DO. R1 & R2 BY ADV. MR.T.J.MICHAEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.15395 OF 2009 (O) ----------------------------------- Dated this the 8th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to call for the records leading up to Ext.P6 and set aside the same. ii. to issue such writ, direction or order as are just and necessary in the facts and circumstances of the case to meet the ends of justice. 2. Petitioner is the plaintiff in O.S.No.11/2009 on the file of the Sub Court, Thodupuzha, in which, a decree of perpetual prohibitory injunction was sought for against the defendants/ the respondents herein, from trespassing upon the plaint schedule property or committing any waste or obstructing the plaintiff from the agricultural operations in the property and such other acts which are detrimental to the peaceful WPC.15395/09 2 possession and enjoyment of the property by the plaintiff. Alongwith the suit, the plaintiff moved an application for interim injunction seeking an identical relief till the disposal of the suit. Ext.P1 is the copy of the plaint and Ext.P2, the copy of the interlocutory application moved by the plaintiff. The defendants entering appearance, resisted the interim injunction sought for, filing a joint counter, and Ext.P3 is the copy of that counter. At the instance of the plaintiff, a Commissioner conducted local inspection over the property and filed a report, and Ext.P4 is the copy of that report. The learned Munsiff, after hearing both sides, found that the plaintiff has made out a prima facie case for grant of interim injunction, and accordingly, Ext.P3 application was allowed. Ext.P5 is the copy of that order. Aggrieved by Ext.P5 order, the defendants filed an appeal before the District Court, Thodupuzha. The learned District Judge, after hearing both sides reversed the order of injunction granted in favour of the plaintiff and dismissed his application for injunction. Impeaching the propriety and correctness of the judgment passed by the learned District judge, copy of which is WPC.15395/09 3 produced as Ext.P6, the writ petition is filed seeking the reliefs aforementioned invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Having regard to the submissions made and the facts and circumstances presented, I find the suit claim of the plaintiff was based on a sale deed, produced and exhibited as Ext.A1, which is dated 22.1.2009. Pursuant to that sale deed, he had effected mutation over the property and he is in possession and enjoyment of that property and there is a threat of trespass from the defendants neighbouring property owners, is his case. Ext.A2 tax receipt was also produced to substantiate his possession. In the counter, the defendants contended that they are in enjoyment of the suit property pursuant to an agreement executed by the vendor of Ext.A1 sale deed, and that agreement was for a consideration of Rs.60,000/-, permitting them to cultivate and take yield of sugarcane for a period of six harvest seasons from the property. Even at the WPC.15395/09 4 time of agreement, sugarcane crops were in cultivation and yield thereof was allowed to be taken by the defendants under the agreement, was their case. In the writ petition, along with a counter, the respondents have produced a copy of that agreement as Ext.R1 (a). They advanced a further case that even before filing of the present suit by the petitioner, there was an attempt to dispossess them from the property by the vendor of Ext.A1 sale deed, which necessitated the institution of a suit as O.S.No.217/2008 before the Munsiff Court, Devikulam. In that suit, as against the vendor in the interlocutory application moved by the plaintiffs/defendants in the present suit, the court had ordered for maintaining statusquo. It was during the pendency of that suit, the transfer of the property in favour of the present petitioner was made by the executant of Ext.R1 (a) agreement, but there was no transfer of possession of the property to the vendee/the plaintiff. According to the defendants, they have filed a caveat petition before the Munsiff Court and, after receipt of the notice in that petition, it is their case, the suit had been filed in the Sub Court to evade notice to them, for getting an WPC.15395/09 5 injunction. It is further contended that the executant of Ext.A1 deed, the previous owner, had issued a notice to them terminating the agreement directing them to surrender vacant possession of the property. Ext.B5 is the copy of that notice. 4. In the nature of the relief sought for in the suit and also the injunction application, the primary question that emerges for consideration is who was in possession of the suit property on the date of institution of suit ? The learned counsel appearing for the petitioner impeached the validity of Ext.R1 (a) agreement, as hit by Section 74 of the Kerala Land Reforms Act contending that it cannot be looked into even for collateral purposes as covered by Section 49 of the Registration Act to determine the question of possession. Claim of the respondents/defendants in the suit property is founded on Ext.R1(a) agreement and if that agreement is hit by law and cannot be looked into, it is submitted, then their claim in possession must fail. Countering the arguments advanced by the learned counsel for the petitioner, the learned counsel for the respondents submitted Ext.R1 (a) is WPC.15395/09 6 only a licence and that being so, there is no bar under law in examining the terms under that deed to trace out whether possession over the property was transferred under that deed, after receipt of the consideration, in their favour. 5. Ext.R1 (a) is seen executed by vendor of the plaintiff receiving a consideration of Rs.60,000/- and the terms of the deed would also show that possession over the property was handed over to the 1st defendant in whose favour it was executed. Whether Ext.R1 (a) deed is a lease or licence is a matter to be looked into in the trial of the suit, after giving opportunity to both sides to present their case. The learned counsel for the petitioner disputing the validity of Ext.B5 notice allegedly issued by the executant of Ext.A1 sale deed has contended that the owner has the right to revoke the licence and once the licence is revoked, the possession of the licensee is that of a trespasser. But it has to be noted that the revocation of a licence, when there was transfer of possession of property under the terms of the deed, is covered by Section 60 of the Easements Act. So, at this stage, whether Ext.B5 is WPC.15395/09 7 capable of changing the status of the defendants as that of a trespasser no definite finding can be entered. I find considerable force in the submissions made by the learned counsel for the defendants, and also the conclusion formed by the learned District Judge, that as on the date of the suit, possession was with the defendants and there was an order of statusquo passed by the competent court to maintain it till the disposal of that suit, which was filed by the defendants. No record has been produced that either the executant of Ext.A1 sale deed or the present plaintiff received possession of the property from defendants after the institution of that suit. 6. It was urged before me on behalf of the petitioner that as against a trespasser a true owner is entitled to an order of injunction to protect his possession over the property, and a trespasser cannot resist such claim. If a trespasser is in settled position, then, his possession can be disturbed only by the process of law is well settled. After going through the judgment of the learned District Judge, I do not find any impropriety or illegality warranting interference by this Court WPC.15395/09 8 exercising its supervisory jurisdiction. I make it clear that the observations made by this Court as well as the learned District Judge in appeal shall be treated as observations made only for the purpose of disposal of the interlocutory application and it should not reflect in any way the decision to be taken by the learned Sub Judge, after trial, which, needless to say, should be formed on the materials tendered by both sides. Writ petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009