IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 WP(C).No. 18655 of 2008(U) -------------------------- OS.308/2007 of I ADDL.SUB COURT, THRISSUR .................... PETITIONER(S): PETITIONER ------------------------- SATHEESHKUMAR RAJA,REP.BY THE POWER OF ATTORNEY HOLDER C.A.SREEKUMAR RAJA, 50/777M, KOSSARI LANE,PONEKKARA, EDAPPALLY,COCHIN-24. BY ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. SHERLY,S/O.CHERUVATHUR SUNNI @ MANI, ERVIMANGALAM,NADATHARA, THRISSUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. ADV. SRI.P.SANTHOSH (PODUVAL) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2009, ALONG WITH WPC NO.19850 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ---------------------------------------------- W.P.C.NOs.18655/08 & 19850/08 ---------------------------------------------- Dated 12th March 2009 JUDGMENT Petitioner in W.P.C.No.18655/08 is the first defendant and petitioner in W.P.C.19850/08 is the second defendant in O.S.308/2007 on the file of Sub court, Thrissur. That suit was instituted by first respondent seeking decree for declaration that plaint A schedule property belongs to her absolutely. In case, defendants are contesting the suit an alternative relief of declaration that court auction sale in E.P.10/1997 in execution of the decree in O.S.30/1992 is not valid and binding on first respondent or her share and partition of plaint B schedule property and allotment of her share was also sought. Plaint A schedule property is part of plaint B schedule property. Plaint B schedule property admittedly originally belonged to Cheravallur Sunny alias Mani, father of first respondent. He had two sons and one daughter, first respondent. After death of the father, writ petitioner in W.P.C.18655/2008 filed O.S.30/1992 for realisation of money due from the two sons. Suit was decreed. E.P.10/1997 was filed WPC 18655/08 & 19850/08 2 for execution of the decree. Plaint B schedule property was brought up for sale and was purchased by the decree holder/writ petitioner and delivery was also taken. Subsequently after Mary Roy's case as daughter is also entitled to a share in the property of her Christian father, first respondent and her brothers divided the properties of the father in 2002 as per registered partition deed 3521/2002. Plaint A schedule property was allotted to the share of first respondent in that partition. Suit was filed by first respondent for declaration of her right in A schedule property in the said partition deed contending that first respondent is claiming right under court auction sale and in case the partition deed is to be disputed, first respondent is entitled to her 1/3rd share in plaint B schedule property. An alternative relief of declaration that decree and court auction sale in favour of the writ petitioner and it is not binding and consequently partition of plaint B schedule properties is claimed. I.A.2073/2005 was filed by first respondent for an order of temporary injunction restraining defendants from alienating plaint A and B schedule properties or committing waste. Another application was filed under WPC 18655/08 & 19850/08 3 Order XXXXI of Rule 1 of Code of Civil Procedure restraining respondents from causing obstruction to the way to plaint A schedule property. Under Ext.P8 order learned Sub Judge granted an order of temporary injunction restraining petitioners herein from alienating the property or cutting and removing trees and also from causing obstruction to the way. Petitioner in W.P.C.18655/2008 challenged that order before Additional District Court in C.M.A.139/2007. Petitioner in W.P.C.19850/2008 challenged that order in C.M.A.140/2007. As per Ext.P9 order both appeals were dismissed. These petitions are filed under Article 227 of Constitution of India, as no revision is maintainable against Ext.P9 order. 2. Learned counsel appearing for petitioners and first respondent were heard. 3. On hearing learned counsel appearing for both sides, it is clear that the dispute is now between first respondent, daughter of Sunny and the decree holder/auction purchaser and his alienee, the other defendants in respect of the property purchased by first respondent in court auction sale. As found by the courts below, if first respondent, being a daughter is WPC 18655/08 & 19850/08 4 entitled to a share in the property and as she is not a party to O.S.30/1992 or the execution petition, the decree will not be binding on the rights of the first respondent in the property. If that be the case, prima facie, first respondent is not entitled to get 1/3rd share in the property of the father. Under the partition deed entered into between first respondent and her brothers the properties devolved on them from the father were divided. Plaint A schedule property is the property allotted to first respondent. It is based on that partition deed first respondent instituted the suit for declaration of her title to plaint A schedule property. As plaint A schedule property is portion of the plaint B schedule property petitioners also sought an order not to alienate plaint B schedule property or committing any waste in the said property in case the entitlement under the partition is disputed. The order passed by learned Sub Judge as confirmed by learned District Judge in respect of plaint A schedule does not warrant any interference because, being the daughter she is entitled to 1/3rd share on the properties of the father. When she along with the brothers divided the properties and A schedule property was allotted to her WPC 18655/08 & 19850/08 5 share, till the suit is disposed she is entitled to an order against alienating the property or committing waste. 4. Learned counsel appearing for petitioners pointed out that as against the remaining portion of plaint B schedule property the order of injunction granted by the trial court and confirmed by the appellate court is to be modified. There is force in the submission. The case of the first respondent is that 1/3rd share due to her was divided between her brothers and first respondent in 2002 and plaint A schedule property was allotted to her. There is no case that first respondent and her brothers who are respondents 1 and 2, are disputing that right. When the court auction sale in O.S.30/1992 is not binding on first respondent and first respondent is claiming the right under partition deed, she is not entitled to seek an order of temporary injunction in respect of the remaining portion of plaint B schedule property, excluding plaint A schedule property. 5. Writ petitions are disposed clarifying that the order of injunction granted by the courts below is only in respect of plaint A schedule property and WPC 18655/08 & 19850/08 6 the way to plaint A schedule property and is not in respect of plaint B schedule property except the portion corresponding to plaint A schedule. 6. Though learned counsel appearing for first respondent submitted that if writ petitioners are disputing partition, the order of injunction should be in respect of whole plaint B schedule property, I cannot agree with the submission. When in the suit itself, the right is claimed under the partition deed and nobody among the executants of the partition deed is disputed validity of partition, except defendants in the suit who cannot dispute the division of the properties in between the brothers and sister, I do not find any justification for confirming the order of injunction in respect of remaining portion of plaint B schedule property. Learned Sub Judge is directed to dispose the suit expeditiously, untrammeled by any observation in this judgment. M.SASIDHARAN NAMBIAR, JUDGE. uj. WPC 18655/08 & 19850/08 7 M.SASIDHARAN NAMBIAR,J. ------------------------------------------------------ I.A.13859/2008 IN W.P.C.18655/2008 in I.A.14264/2008 IN W.P.C.19850/2008 ------------------------------------------------------ Dated 12th March 2009 O R D E R Petitioner who is sought to be impleaded in writ petitions is wife of one of the brothers of first respondent. Though learned counsel appearing for petitioner submitted that as another suit was filed by the petitioner to set aside the court auction sale and it is pending she is to be impleaded in these petitions, petitioner is not entitled to get herself impleaded in the writ petitions. Her remedy is to work out in the suit instituted by her. Petitions are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.