IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 OP(C).NO. 702 OF 2010(O) -------------------------------------- CMA.30/2010 OF SUB COURT, PAYYANNUR OS.34/2010 OF MUNSIFF COURT, PAYYANNUR .................... PETITIONER: -------------------- THEKKEPURAYIL ABDULLA, AGED 78 YEARS,S/O.MAMMED, VAYAKKARA AMSOM, NARAMBA DESOM,TALIPPARAMBA TALUK, KANNUR DIST BY ADV. SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ RESPONDENT(S): ------------------------- 1. KANHIRANGADAN GOPI,AGED ABOUT 50 YEARS, S/O.KRISHNAN, UMMANIYANAM,PERINGOME AMSOM DESOM, TALIPPARAMBA TALUK, KANNUR DISTRICT-670141 2. CHEKKINATAKATH MUTHALIB, AGED ABOUT 25 YEARS,S/O.SIDDIQUE,THATTUMMAI, VAYAKKARA AMSOM,NARAMBA DESOM,TALIPPARAMBA TALUK 670141,KANNUR DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.702 of 2010 -------------------------------------- Dated this the 15th day of November, 2010. JUDGMENT Plaintiff in O.S.No.34 of 2010 of the court of learned Munsiff, Payyanur and appellant in C.M.A.No.30 of 2010 of the court of learned Sub Judge, Payyannur is the petitioner before me challenging concurrent order of the courts below refusing to grant temporary prohibitory injunction concerning plaint B and C schedule properties. According to the petitioner, entire properties belonged to him he having got it under an oral lease from the jenmi, Yasodhakutty in the year 1962. He has been paying the land revenue for the property. While so he gave ten cents each on the south and west of the entire property to Ismail and Hajira (orally) who have constructed buildings in the said property and are occupying the same . Petitioner sought recovery of possession of plaint D, E and F schedule properties from defendant Nos.3 to 7 and a decree for prohibitory injunction against respondents/defendant Nos.1 and 2 trespassing into plaint B and C schedules claiming title and possession of the property and alleging attempt to trespass by the respondents. Respondents/defendant Nos.1 and 2 denied title and possession claimed by petitioner and contended that 40.47 hectors in R.S.No.7/2 belonged to respondent No.1, he having got it from Vengayil Tharwad under an oral lease. He claimed that he has been paying land revenue for the property. Respondent No.1 assigned 15 cents out of the said property to respondent No.2 as per a registered deed dated 05.07.2008. It is the further case of respondents that respondent No.1 sold another ten cents OP(C) No.702/2010 2 to E.V. Narayanan and the remaining 75 cents is in the possession of respondent No.1. He constructed compound wall on all sides of the disputed property. Respondent No.2 has initiated S.M. No.50 of 2009 before the Land Tribunal, Payyannur for purchase of landlord's right. Petitioner produced Exts.A1 to A4, receipts for payment of basic tax for 1970-71, 1975-76 and 1985-86. Respondents produced Exts.B1 to B8. It takes in receipts for payment of revenue for the year 2007 and thereafter and, certificate of possession issued by the Village Officer. Ext.B6 is a rent receipt dated 02.12.1961 issued by one Balakrishnan Nair of Vengayil Tharwad wherefrom respondent No. 1 is said to have obtained oral lease. Ext.B7 dated 17.12.1961 is a similar receipt and Ext.B8 dated 07.07.2009. is a receipt for payment of land revenue. Exts.C1 and C2 are report and sketch submitted by the Advocate Commissioner. Learned Munsiff observed that claim of petitioner for possession of plaint B and C schedules cannot prima facie be accepted and accordingly dismissed I.A.No.577 of 2010. That was confirmed by the appellate court. That judgment is under challenge in this petition. Learned counsel for petitioner contends that finding entered by the courts below are erroneous and that a look at Exts.C1 and C2, report and sketch would show that attempt has been made by respondents to trespass into the property recently. 2. In Exts.C1 and C2 (produced and marked in this proceeding as Ext.P5) Advocate Commissioner has referred to what he has seen at the spot and so far as plaint B schedule identified by the Advocate Commissioner as OP(C) No.702/2010 3 pointed out by the petitioner is concerned, he has reported that B schedule property was bounded by boulder stones. From that I am unable to reach a conclusion even prima facie at this stage that petitioner is in possession of the suit property or there was attempt to trespass by the respondents. So far as respondents are concerned, respondent No.1 has produced Exts.B6 and B7 for alleged payment of rent to Balakrishnan, claimed to be a member of the Vengayil Tharwad from where respondent No.1 is said to have obtained oral lease of the suit property. It is in the above circumstances that courts below found no prima facie case for petitioner and dismissed I.A.No.577 of 2010 . I am unable to say that courts below have refused to exercise jurisdiction vested in them or exercised it in a perverse manner so that interference under Article 227 of the Constitution is not required. Learned Munsiff is directed to dispose of the suit untrammelled by any observation contained in the impugned order/judgment or in the judgment of this Court. Petition is dismissed. THOMAS P.JOSEPH, Judge. cks