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2013 DIGILAW 115 (KER)

Beena Kannan v. Abdullakutty

2013-02-15

K.M.JOSEPH, K.RAMAKRISHNAN

body2013
Judgment : K. Ramakrishnan, J. The above appeal has been filed by the defeated first defendant/first respondent in I.A.No.2677/2010 in O.S.No.224/2010 on the file of the Principal Sub Court, Ernakulam. The suit was one filed by the plaintiffs for a decree, directing the first defendant to give back possession of plaint-B schedule property to the plaintiff and 2nd defendant, and also for a decree for mandatory injunction directing the first defendant to demolish all the structural works erected in the plaint-B schedule property, and for a permanent prohibitory injunction restraining the first defendant from carrying any construction or committing any mischief detrimental to the interest of justice, plaintiffs in plaint-B schedule property with following allegations. 2. Plaint-A schedule property having an extent of 63 and 15/16 cents comprised in Sy.No.410/1 of Ernakulam Village, originally belonged to one Kochu Mammu having been purchased from Bava son of Sultan Pillai as per sale deed No.2054/1118 ME of Sub Registrar Office, Ernakulam. He was in possession and enjoyment of the same. After assignment, the survey number was sub divided and renumbered as 410/4 and 410/5 and the property having an extent of 60½ cents and 2.450 cents (originally shown as two and half cents and later it was amended as 2.450 cents as per order in I.A.No.8546/2010) are now comprised in Sy.Nos.410/4 and 410/5 respectively. The brother-in-law of Kochumammu namely Kunju Bava was in possession of property on the southern side of plaint-A schedule property and after purchase of the property, Kochymammu demolished the compound well separating his property and his brother-in-law’s property on the southern side, in order to make easy access for both of them, considering their relationship. Property of Kunju Bava and Kochumammu were lying contiguous to each other. After death of Kochumammu, his legal heirs, namely the plaintiff and 2nd defendant partitioned the property, as per partition deed number 3292/80 of SRO, Ernakulam and at that time, when the property was measured, they found 57.950 cents only (55.5½ cents in Sy.No.410/4 and 2.45 cents in Sy.No.410/5) in their possession and they decided to partition that much extent of property and accordingly, the property was partitioned. Subsequently, the allottees have assigned the properties allotted to them to different person, from whom first respondent had purchased the same and she is in possession and enjoyment of the same. 3. The plaintiffs are the legal heirs of late Kochumammu. Subsequently, the allottees have assigned the properties allotted to them to different person, from whom first respondent had purchased the same and she is in possession and enjoyment of the same. 3. The plaintiffs are the legal heirs of late Kochumammu. After partition, it was revealed that two cents of property was left out, and it was in the possession of legal heirs of Kunju Bava and they have handed over that portion to the plaintiffs and the 2nd defendant who are the legal heirs of Kochymammu and thereafter, they have been in possession of the same and this property was shown as plaint-B schedule property. The property obtained by first defendant is shown as plaint-C schedule property. The first defendant is having only right over 57.950 cents of land which alone was partitioned as per partition deed No.3292/1980 of SRO, Ernakulam, and obtained as per sale deed No.3303/2004. Plaintiffs and 2nd defendant were residing far away from the plaint-B schedule property. After purchasing plaint-C schedule property, first defendant was making construction and renovation work of their textile show room by name, Seemati Textiles. She also purchased the property lying on the western side of plaint-A schedule property covered by sale deed No.3303/2004. 4. While so on 20.01.2010, when the first plaintiff visited the plaint schedule property, it was revealed that first defendant had trespassed into the plaint-B schedule property and started making some construction in plaint-B schedule property which was not covered by partition deed and the sale deeds lying on the southern side of plaint-C schedule property. Plaintiffs came to know that 2nd defendant, without intimating the plaintiff, filed O.S.No.1146/2006 before the Munsiff Court, Ernakulam, for permanent prohibitory injunction against the first defendant and later, the suit was dismissed as not pressed. The present plaintiffs were not parties of the above said suit. Plaintiffs are co-owners of the property along with second defendant. First defendants is an influential person, and it is not possible for them to recover the property from the first defendant without recourse to legal proceedings. So, they have no other remedy except to file the suit for reliefs claimed in the plaint. Hence the suit. 5. Plaintiffs are co-owners of the property along with second defendant. First defendants is an influential person, and it is not possible for them to recover the property from the first defendant without recourse to legal proceedings. So, they have no other remedy except to file the suit for reliefs claimed in the plaint. Hence the suit. 5. Along with the suit, plaintiffs filed I.A.no.2677/2010 for interim injunction, restraining the first respondent from carrying out any construction or committing any mischief in plaint-B schedule property or further trespassing into plaint-B schedule property pending disposal of the suit. No interim injunction was granted and notice alone was ordered. 6. The first respondent appeared and filed counter contending as follows: She had denied the allegations in the plaint, and in the injunction application regarding the right claimed in respect of the plaint-B schedule property by the plaintiffs. She had also filed detailed written statement and stated in the objection to the injunction application that, the contentions raised in the written statement may be treated as part of the objection to the injunction application. She had denied the allegations in the affidavit and contended that the petitioners have no night over the property in the possession of the first defendant as they have alienated the entire property to various persons during the period 1980 – 1981 and from the assignees, the first respondent had purchased the same. Neither the plaintiffs nor the second defendant had any right or possession over the plaint-B schedule property. The claim of the petitioners if any is barred by the principles of adverse possession and limitation. After assigning the property, neither the plaintiffs nor second defendant had got any possession or right in the property. In fact, the first defendant had purchased the property as per document No.3303/2004 and prior to that, the property was assigned by the allotties in the partition in the partition deed, namely, the plaintiffs and the second defendant to others as per sale deed Nos.4285/80, 4286/80, 4287/80, 4288/80 and 4289/80, all dated 22.12.1980 and thereafter the respective assignees were in possession of the property from whom the first defendant had purchased the same. The second defendant had filed a suit as O.S.No.1147/2006 before the Munsiffs Court, Ernakulam and claimed injunction against the first respondent and she had contested the case and thereafter the suit was dismissed as not pressed. The second defendant had filed a suit as O.S.No.1147/2006 before the Munsiffs Court, Ernakulam and claimed injunction against the first respondent and she had contested the case and thereafter the suit was dismissed as not pressed. Merely because of some excess extent was found on calculation in the revenue records, is a ground to claim title to the property as the plaintiffs were not in possession or having right over the extent of the property as shown in the revenue records at the time when the partition was effected. First respondent invested huge amount for the construction work and the construction is almost over. Plaintiffs have no prima facie case or balance of convenience in their favour. On the other hand, the balance of convenience and irreparable injury will be more in favour of the first respondent, if injunction is granted. So, plaintiffs are not entitled to get injunction as prayed for and she prayed for the dismissal of the application. 7. Without making the documents, learned Sub Judge heard both sides and granted injunction as prayed for in the petition, restraining first defendant from making any construction in the plaint-B schedule property or committing any mischief in plaint-B schedule property, till the disposal of the suit. Aggrieved by the same, the present appeal has been preferred by the dissatisfied appellant/first respondent before the court below. 8. Heard both sides. 9. The point that arises for consideration is “whether the order passed by the court below is liable to be interfered with”? 10. Points Senior Counsel for the appellant argued that reading of the partition deed will go to show, that there was no property left out at the time of partition, and the southern boundary and shown as property of another person and not that of the plaintiffs. They are now claiming right on the basis of some arithmetical calculations made in the extent available on the basis of the extent shown in the revenue records. Further the first commissioner’s report will go to show that the construction has already started at the time when the commissioner inspected the property and the second commissioner’s report will go to show that the construction was almost completed and the structural work of six floors was completed. There was no injunction during the pendency of the suit and the suit was once dismissed for default and later restored. There was no injunction during the pendency of the suit and the suit was once dismissed for default and later restored. Without measuring the property on the basis of the partition deed and also on the basis of the assignment deeds executed by the allottees in the partition deed, it is not possible to identity the property and without identifying the same, the lower Court was not justified in granting injunction. Further the lower Court has not considered the balance of convenience or irreparable injury, that is likely to be caused to the first respondent while granting injunction. Learned senior counsel also argued that since there is a prayer for mandatory injunction, even if any construction is made in the disputed property, the same will have to be removed by the appellant if the plaintiffs ultimately succeeded in the suit and appellant will not get any value of improvement as well and no injury will be caused to the plaintiffs, if appellant is permitted to do the finishing work in the building. 11. On the other hand, the counsel for the respondents (plaintiffs) argued that the conduct of the first respondent will go to show that she has not come to court with clean hands and she does not deserve any sympathy and she is not entitled to get an equitable relief in her favour. Constructions were made in the plaint-B schedule property during the pendency of the suit and if the construction is completed, it will be difficult for the plaintiffs to demolish the same and recover the disputed property. 12. Before going to the facts, we may consider the legal principles, for granting interim injunction, during pendency of suit. In the decision reported in 2012 (1) SCC 735 Makers Development Services Private Limited v. M. Visveswara Industrial Research and Development Centre, it has been held that in order to grant interim injunction during the pendency of suit, it has to be established by the plaintiff that, there is prima facie case and balance of convenience in favour of the plaintiffs. It is further reiterated in the decision that, if, issuance of interim order which would create irremedial difficulties for the defendant in the event of dismissal of the suit, it cannot be issued. Same view has been reiterated in the decision reported in 2012 (5) SCC 416 , Chandrika Chunilal Shah v. Orbit Finance Private Limited and others. It is further reiterated in the decision that, if, issuance of interim order which would create irremedial difficulties for the defendant in the event of dismissal of the suit, it cannot be issued. Same view has been reiterated in the decision reported in 2012 (5) SCC 416 , Chandrika Chunilal Shah v. Orbit Finance Private Limited and others. Further in the decision reported in 2012 (6) SCC 792 , Best Sellers Retail (India) Private Limited v. Aditya Birla Nuvo Limited and others, it has been held that while considering an application under order 39 Rule 1 of Code of Civil Procedure, prima facie case in favour of party seeking relief (plaintiff) alone is not sufficient and it must be shown prima facie that injuries suffered by the plaintiff on refusing of temporary injunction would be irreparable. Further, in the decision reported in Mandali Ranganna v. T. Ramchandra (2008) 11 SCC 1 ), after considering the principles for granting injunction, it has been further observed that whether the constructions were done rightly or wrongly, that cannot be directed to be demolished at least at the stage when the suit was pending and especially when they were allowed to be in possession of the property exclusively and invested huge amount in the property for construction of the same, it is not proper on the part of the Court to direct the respondent in the suit to not proceed with the construction and in that case, it was found that interest of justice could be sub-served, if, while allowing the respondents to carry out the construction of the building, the same is made subject to the ultimate decision of the suit and direct the lower court to dispose of the suit at the earliest. With the principles in mind, the case in hand has to be considered. 13. The case of the plaintiffs in the plaint was that their predecessor Kochu Mammu had obtained 63 15/16 cents of land as per document No.2054/1118 ME of SRO, Ernakulam and thereafter, the property which was originally in Sy. No.410/1 was later sub divided into 410/4 and 410/5 and 60½ cents was comprised in Sy.No.410/4 and 2.450 cents of land in Sy.No.410/5 respectively. The southern boundary property was in the possession of one Ammu Bava @ Kunju Bava, who is non other than the brother-in-law of Kochu Mammu, the predecessor of the plaintiffs and second defendant. No.410/1 was later sub divided into 410/4 and 410/5 and 60½ cents was comprised in Sy.No.410/4 and 2.450 cents of land in Sy.No.410/5 respectively. The southern boundary property was in the possession of one Ammu Bava @ Kunju Bava, who is non other than the brother-in-law of Kochu Mammu, the predecessor of the plaintiffs and second defendant. It is also the case of the plaintiffs that after the death of Koch Mammu, the property, on measurement found having an extent of 57.950 cents (55.500 cents in Sy.No.410/4 and 2.450 cents in Sy.No.410/5) only and that was partitioned as per partition deed No.3292/80 of SRO, Ernakulam, and thereafter, they have assigned the properties so allotted to several persons from whom first defendant had purchased the same and that portion was shown as plaint-C schedule property. According to plaintiffs, it was later revealed that two cents of property belonging to them was in the possession of Kunju Bava and when it was realized, the legal heirs of Kunju Bava had returned the same and they are in possession of that property, and that property was shown as plaint-B schedule property, and now they are claiming reliefs of recovery of possession and mandatory injunction in respect of plaint-B schedule property. It is an admitted fact that first defendant is in possession of the property including the disputed property and even at the time when the suit was filed, she had started construction of a multi storied building in plaint-C schedule and B schedule property. According to the first defendant, there is no such B-plaint property, and it is an imaginary one and no property was left out with the plaintiffs at the time when they have effected the partition. So, they cannot claim any right over plaint-B schedule property. Though, it was mentioned in the plaint that, legal heirs of Kunjambu Bava has returned two cents of land, namely plaint-B schedule property which was found to be belonged to the plaintiffs, it was not mentioned in the plaint as to when exactly, it was returned to them. We are not at this stage going into question regarding the rights of the persons and identity of the property etc., as it is a matter for evidence. We are not at this stage going into question regarding the rights of the persons and identity of the property etc., as it is a matter for evidence. Further, it is also fairly conceded by both the counsels that a commission application has been filed by the first defendant to measure the property on the basis of the partition deed entered into between the legal heirs of Kochu Mammu and the various assignment deeds executed by them on the basis of the allotment made as per the partition deed and the application was allowed and commissioner is yet to submit the report on that basis. So, without obtaining a detailed report on this aspect, it is not possible at this stage to come to any conclusion, as to whether there was any property left out as claimed by the plaintiffs and described as plaint-B schedule property. 14. It is also seen from the subsequent commissioner’s report that the structural work of construction done in plaint-B schedule and C schedule property has been completed. Even at the time, when the commissioner inspected the property at the first instance, the construction work has already been started and it was in progress and construction of first floor was completed. It may be mentioned here that during the course of argument, the learned senior counsel appearing for the appellant submitted that even if the construction was allowed to be completed, no irreparable injury will be caused to the plaintiffs, as if they ultimately win the suit, the first defendant will have to surrender possession of the disputed property, after demolishing the construction, if any made in that portion of the property. So, there will not be any irreparable injury caused to the plaintiffs, if injunction is not granted. But on the other hand, if injunction is granted against the first defendant from making further construction in the property, then, it will cause irreparable injury and it cannot be remedied later, if ultimately plaintiffs loose the suit later. These aspects were not considered by the learned Sub Judge, before ordering injunction. 15. But on the other hand, if injunction is granted against the first defendant from making further construction in the property, then, it will cause irreparable injury and it cannot be remedied later, if ultimately plaintiffs loose the suit later. These aspects were not considered by the learned Sub Judge, before ordering injunction. 15. It is settled law that even if, there is prima facie case and balance of convenience in favour of the plaintiffs, injunction need not be granted, if the irreparable injury caused to the defendant will be more compared to the loss caused to the plaintiffs, if injunction is not granted, then normally, injunction should not be granted. This aspect was also not considered by the Court below, before passing the impugned order. Considering the fact that construction of the building is over and only interior finishing work like plastering, painting etc., are alone to be done and also considering the submission made by the counsel for the appellant that occupancy certificate has been given in respect of ground floor and first floor as the portion has already been assessed by the corporation, we feel that the Lower Court should not have passed the impugned order and the same has to be set aside and has to be modified as follows: a) The appellant is directed, not to make any portion of the building constructed in the disputed portion without any objection and will not claim any value of improvement for the portion of the building so demolished. With the above modification, the appeal is allowed. The point is answered accordingly. In the result, the appeal is allowed and the order of the lower Court granting injunction restraining the appellant from making any construction in plaint-B schedule property, and doing any mischief in the property is set aside and the same is modified as follows:a) The appellant is directed, not to make any extension or any further construction work in plaint-B schedule property, but this will not be a bar for her to do the finishing work of the existing building like plastering, painting, electrification etc., and doing interior finishing work in the building. b) The appellant shall not let out the building to third parties. b) The appellant shall not let out the building to third parties. c) It is made clear that this order will not give the extension or any further construction work in plaint-B schedule property, but this will not be a bar for her to do the finishing work of the existing building like plastering, painting, electrification etc., and doing interior finishing work in the building. b) The appellant shall not let out the building to third parties. c) It is made clear that this order will not give the appellant any special right in the disputed property and construction if any made in that portion will be subject to the result of the suit. d) if ultimately, the decision in the case goes against the appellant, then she should remove the portion of the construction made in the disputed property without raising any objection, and she will not be entitled to get any compensation for the work done in that portion of the disputed property. e) The appellant shall file an unconditional undertaking in the form of an affidavit in the Lower Court, within four weeks from today, undertaking that she will abide by the conditions imposed by this court and she will remove the appellant any special right in the property and construction, if any made in the disputed portion will be subject to the result of the suit. d) If ultimately, the decision in the case goes against the appellant, then she should remove the portion of the construction made in the disputed property without raising any objection, and she will not be entitled to get any compensation for the work done in that portion of the disputed property. e) The appellant shall file an unconditional undertaking in the form of an affidavit in the Lower Court, within four weeks from today, undertaking that she will abide by the conditions imposed to this court and she will remove the portion of the building constructed in the disputed portion without any objection and without claiming any value of improvement for the portion of the building so demolished. Considering the circumstances of the case, parties are directed to bear their respective costs in the appeal. Considering the circumstances of the case, parties are directed to bear their respective costs in the appeal. Considering the nature of the dispute involved and circumstances of the case, the lower Court is directed to dispose of the suit itself, as expeditiously as possible, at any rate before the court close for Christmas holidays. Parties are directed to appear before the Court below on 04/03/2013. The office is directed to send the records to the court below at the earliest.