IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 WP(C).No. 24138 of 2008(W) -------------------------- AGAINST THE ORDER DATED 23/07/2008 IN IA.1508/2008 IN OS.108/2006 of II ADDL.MUNSIFF COURT II,NEYYATTINKARA .................... PETITIONERS: ---------------------- 1. R. AYYAPPAN NAIR, RESIDING AT “RAJALEKSHMI”, KOTTUKAL PAKUTHY, KOTTUKAL DESOM, NEYYATINKARA. 2. AJITHA, KOLTTUKAL PAKUTHY, KOTTUKAL DESOM, NEYYATTINKARA. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: --------------------------- 1. LEELA, MELEPANAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. 2. KRISHNAN NAIR, MELEPANAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. 3. RATHEESH, MELEPANAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. 4. VIJAYAN, MELEPANAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR - R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24138/2008 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE INJUNCTION ORDER DTD. 10/02/2006 IN I.A.742/2006 IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P1(A): COPY OF THE ORDER DTD. 9/03/2006 IN I.A.742/2006 IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL. MUNSIFF COURT II, NEYYATTINKARA. EXT.P2: COPY OF THE REPORT N O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P2(A): COPY OF THE PLAN IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P3: COPY OF THE REPORT IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P3(A): COPY OF THE PLAN IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P4: COPY OF THE REPORT IN O.S.NO.713 OF2007 ON THE FILE OF THE 1ST ADDL.MUNSIFF COURT, NEYYATTINKARA. EXT.P4(A): COPY OF THE PLAN IN O.S.NO.713 OF 2007 ON THE FILE OF THE 1ST ADDL.MUNSIFF COURT, NEYYATTINKARA. EXT.P5: COPY OF THE REPORT IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P5(A): COPY OF THE PLAIN IN OS.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P6: COPY OF THE AMENDED PLAINT IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P7: COPY OF THE WRITTEN STATEMENT DTD. 14/06/2006 IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. EXT.P7(A): COPY OF THE ADDL.WRITTEN STATEMENT DTD. 1/03/2008 IN OS.NO.108 OF 2006 ON THE FILE OF THE ADDL.MUNSIFF COURT II, NEYYATTINKARA. Kss ..2/- ...2.... WPC.NO.24138/2008 W EXT.P8: COPY OF THE PETITION FOR MANDATORY INJUNCTION IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL. MUNSIFF COURT II, NEYYATTINKARA. EXT.P9: COPY OF THE OBJECTION TO EXT.P. EXT.P10: COPY OF THE ORDER DTD. 23/07/2008 IN I.A.1508/2008 IN O.S.NO.108 OF 2006 ON THE FILE OF THE ADDL. MUNSIFF COURT II, NEYYATTINKARA. EXT.P11: COPY OF THE PHOTOGRAPH. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT TO EXTS.P2 & P2(A). EXT.R1(B): COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT TO EXTS.P3 & P3(A). EXT.R1(C): COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT TO EXTS.P4 & P4(A). EXT.R1(D): COPY OF THE COMMISSION REPORT AND PLAN IN O.S.528/2001. /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.24138 OF 2008 =========================== Dated this the 4th day of September, 2008 JUDGMENT Petitioners are the plaintiffs and respondents the defendants in O.S.108/2006 on the file of Munsiff Court, Neyyattinkara. Suit was filed on 10.2.2006 for a declaration of title and possession of petitioners to the plaint B schedule property, restraining respondents from trespassing into the property or constructing any compound wall enclosing any portion of plaint B schedule property. I.A.742/2006 was filed for an order of temporary injunction. On 10.2.2006 itself an order of temporary injunction was granted restraining respondents from trespassing into or constructing any compound wall enclosing any portion of plaint B schedule property or comitting any waste on the plaint B schedule property. The order was served on the respondents on the same day. A Commission was appointed by the court. W.P.(C)24138/2008 2 The Commissioner inspected the property on 16.2.2006 and submitted Ext.P2 report and Ext.P2(a) plan. A report and plan submitted by the Commissioner show that there was no construction in the plaint B schedule property. I.A.742/2006 was subsequently closed making the order of temporary injunction absolute, as per order dated 9.3.2006 recording that respondents did not file any objection. That order admittedly is subsisting. Commissioner once again inspected the property on 21.12.2006. There is no dispute that respondents were also present at that time. Ext.P3 report and Ext.P3(a) plan were submitted after that inspection. Ext.P3 report and Ext.P3(a) plan also show that plaint B schedule property was intacted. Subsequently plaint C schedule property was included in the plaint and plaint was amended claiming additional reliefs. I.A.1508/2008 was filed by petitioners for an order of interim mandatory injunction directing respondents to remove the basement constructed within the plaint W.P.(C)24138/2008 3 B and C schedule properties contending that subsequent to the order of injunction and the inspection of the Commissioner, a basement was constructed on the north eastern portion of plaint B schedule property. Respondents resisted the petition contending that construction of the basement is within their property and that portion does not form part of plaint B schedule property and therefore petitioners are not entitled to an order as sought for. It was also contended that plaint C schedule property belongs to the Trust and without impleading the trustees, no order could be passed as sought for. 2. Learned Munsiff under Ext.P10 order dismissed the application holding that the dispute is to be settled after recording the evidence and the suit is ripe for trial and can be disposed. This petition is filed under Article 227 of the Constitution of India challenging Ext.P10 order. 3. Learned counsel appearing for petitioners and respondents were heard. W.P.(C)24138/2008 4 4. Learned counsel appearing for petitioners argued that fact that the disputed construction in the plaint B schedule property was not there when the suit was instituted cannot be disputed as the Commissioner inspected twice and submitted reports stating that plaint B schedule property is intact and when the Commissioner inspected for the third time, a construction of basement was seen in the plaint B schedule property which was not there originally and in such circumstance when an order of temporary injunction was granted, which was made absolute by the court and it is proved that construction was made subsequent to the order passed, learned Munsiff should have removed the construction as sought for and question with regard to the right of that portion of the property could be decided in the suit and respondents cannot be allowed to have the basement which is causing obstruction to the movement of the vehicle of the petitioners through plaint B schedule property. Learned counsel appearing for respondents W.P.(C)24138/2008 5 argued that first report of the Commissioner cannot be accepted as it was an ex parte one. It was also argued that second report is also not reliable, as the Commissioner has not properly identified the property. Learned counsel vehemently argued that the eastern boundary of the property of respondents was not properly identified or located by the Commissioner and it should be a straight line and the disputed basement falls within the property of respondents and not part of the plaint B schedule property and therefore petitioners are not entitled to the order of interim mandatory injunction sought for. 5. An interim mandatory injunction is a rare relief to be granted in a suit. But when evidence establish that there was no construction in the plaint B schedule property and court has passed an order restraining respondents from putting up any structure in the plaint B schedule property and when that order of injunction subsists and a construction has been made in the plaint B schedule W.P.(C)24138/2008 6 property, it is a case where an interim mandatory injunction is to be granted. Even if case of the respondents that construction made is within their property is accepted, if the order of temporary injunction granted, which was made absolute after the appearance of the respondents, is in respect of that portion of the property also, respondents are not entitled to avoid an order of interim mandatory injunction on the ground that it is their property. If an order of temporary injunction was granted inclusive of a portion of the property of respondents, they should have filed an objection to the application for injunction and sought an order vacating that order. Without filing an objection, by their action respondents caused the court to make the order of temporary injunction absolute. In such a factual background respondents are not entitled to put up constructions in the plaint B schedule property, based on the contention that it is their property. The report submitted by the Commissioner establish W.P.(C)24138/2008 7 that there was no construction in any portion of the plaint B schedule property, including the north eastern portion where subsequently a basement was constructed. In such circumstance, learned Munsiff was not justified in dismissing the application. Interim mandatory injunction should have been granted directing respondents to remove the basement constructed within the plaint B schedule property. 6. The question whether it forms part of the property of respondents or it belongs to the petitioners is to be decided in the suit after recording the evidence. But till then respondents cannot be permitted to continue to enjoy fruits of their illegal action. Therefore Ext.P10 order is quashed. Respondents are directed to remove the construction made on the north eastern portion of plaint B schedule property as reported by the Commissioner in Ext.P5(a) plan. If the respondents fail to remove the same within ten days from today, petitioners are entitled to get it removed through W.P.(C)24138/2008 8 court, at the expense of the respondents. Learned Munsiff is directed to dispose the suit untrammelled by any of the observations in Ext.P10 order as expeditiously as possible. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006