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2013 DIGILAW 487 (KER)

Muhammed Abdul Razakh v. Priyadarshini

2013-06-17

THOMAS P.JOSEPH

body2013
Judgment : 1. This appeal arises from the order passed by the learned Sub Judge, Manjeri on I.A.No.215 of 2013 in O.S.No.7 of 1994. 2. As originally filed, it was a suit for prohibitory injunction and partition of the plaint schedule items claiming that the appellants/plaintiffs have right over the property. According to them, 7 items referred to in the plaint schedule were outstanding with the late Pokker and his wife, Biyya on leashold right as registered lease deed of the year, 1936. That right was transferred to Muhammed Moulavi and on his death, the properties devolved on appellants/respondents 4 to 10 and defendants 1 to 7. 3. The respondents 1 to 3/defendants 8 to 10 contended that the plaint schedule items are not identified and that the appellants have made claims with respect to the 7 items referred to in the schedule to the written statement. The respondents 1 to 3 set up independent right and possession over the said 7 items. 4. It appears that there was some attempt to mediate the dispute. But, nothing worthwhile transpired. In the meantime evidence was recorded. At that stage, the respondents 1 to 3 filed I.A.No.215 of 2013 for an order of temporary injunction to restrain the appellants and respondents 4 onwards from trespassing into the written statement schedule items which they claimed is in their exclusive ownership and possession. That application was resisted by the appellants but allowed by the learned Sub Judge as per the impugned order which is under challenge. 5. The learned counsel contends that it is without a counter claim in the written statement that the respondents 1 to 3 asked for an order of temporary injunction. According to learned counsel, in the absence of a counter claim, the trial court could not grant a decree in favour of respondents 1 to 3 and hence something which could not be granted finally could not have granted temporarily. 6. A further contention the learned counsel has advanced is that though the respondents 1 to 3 have a contention that the schedule items are not identifiable, those items are also scheduled in the application for injunction and it is without proper identification that the learned Sub Judge has granted order of injunction. 7. 6. A further contention the learned counsel has advanced is that though the respondents 1 to 3 have a contention that the schedule items are not identifiable, those items are also scheduled in the application for injunction and it is without proper identification that the learned Sub Judge has granted order of injunction. 7. Lastly it is argued that properties regarding which the order of injunction is passed give yield and hence it was appropriate that a receiver was appointed. 8. So far as the first contention is concerned, it is not as if the Court is without jurisdiction to grant an interim order of injunction without a counter claim sought for in the written statement. The only thing is that the order of injunction granted by the Court will remain only up to the disposal of the suit. Position may be different if temporary relief is claimed with respect to a situation which existed prior to the date of suit, without a counter claim. 9. So far as dispute regarding identity of the property is concerned, it is seen from the affidavit of the respondents 1 to 3 (a copy of which is given to me for perusal) that the respondents 1 to 3 have stated that the appellants and respondents 4 onwards are claiming right over the property which the respondents 1 to 3 have scheduled in written statement and which belong to them and is in their possession. It is also stated that the plaint schedule items are referred to in the application for injunction only for the reason of the appellants and respondents 4 onwards claiming right over the property described in the written statement schedule which according to the respondents 1 to 3 belong to and is in their possession. 10. I must notice that the respondents 1 to 3 have raised dispute regarding identity of the property scheduled in the plaint and according to them, the claim made by the appellants and respondents 4 onwards is concerning the property which belong to them and is in their possession and which is described in the written statement. Those items are described in the application for injunction as well. 11. So far as the last argument is concerned, that is not to be gone in this proceeding. 12. Those items are described in the application for injunction as well. 11. So far as the last argument is concerned, that is not to be gone in this proceeding. 12. Learned Sub Judge found from the evidence of PW1 that the appellants have no possession of the disputed properties and thought it fit to grant an order of injunction. I do not find any reason to interfere. This appeal is dismissed. All interlocutory applications will stand dismissed.