Shanavas vs Khadeeja Muhammed

G.Girish, J

The dismissal of I.A.No.1/2024, an application for temporary injunction under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908, by the Additional Sub Court, North Paravur, is under challenge in this appeal filed by the plaintiff in O.S.No.36/2024 on the files of the said court.

The suit was one for declaration that the partition deed No.595/2016 of Alangatt S.R.O (Ext.A2) has been created by perpetrating fraud, misrepresentation and illegality; and seeking partition of the suit property. The suit property belonged to Abdul Salam, the deceased father of the plaintiff. After the death of the plaintiff’s father, the said property devolved upon the plaintiff, his mother and siblings and also upon the mother of the deceased by way of intestate succession. It is stated that the mother of the plaintiff’s father obtained 1/6 share over the suit property as per the relevant provisions of intestate succession of Muslim law. The above said ⅙ share obtained by the mother of plaintiff’s father was said to have been gifted (vide Ext.A1) to the husband of the 1st defendant, who was the direct brother of deceased father of the plaintiff. The defendants 2 and 3 are the son and daughter of the 1st defendant. The husband of the 1st defendant, who is now no more, had allegedly executed the impugned partition deed by perpetrating fraud and misrepresentation in the year 2016. The plaintiff would allege that the above person managed to execute the said partition deed in such a manner that he got a share which was about three times the share which he could have obtained considering the fact that the gift deed executed in his favour by the mother of plaintiff’s father was only in respect of the 1/6 share to which she was entitled over the suit property. In the above said partition deed, the mother of the plaintiff is a signatory in her individual capacity as well as in her capacity as the power of attorney holder of the plaintiff. The brother and sister of the plaintiff are also signatories to that partition deed. According to the plaintiff, he had executed a power of attorney in favour of his mother at the request of the husband of the 1st defendant who insisted that a partition of the suit property could be effected so that the shareholders could conveniently enjoy the property. It is also stated that the above request was made by him under the pretext that the allotment of his share would be limited to the 1/6 share gifted to him by the mother of the plaintiff’s father.

The plaintiff has also raised a contention that his brother who had affixed signature as a party to that partition deed, was not having the mental capacity to enter into such a transaction. Thus, the plaintiff would contend that the 1st defendant’s husband (plaintiff’s father’s brother) got executed the aforesaid partition deed by perpetrating fraud and misrepresentation. After the death of the 1st defendant’s husband on 09.08.2020, the defendants 1 to 3 are said to be the legal heirs who are entitled to inherit his property. It is the further contention of the plaintiff that he came to know about the misdeed so committed by the late husband of the 1st defendant only when defendants 1 to 3 made an effort to measure out the property and construct fencing enclosing a larger extent of property as their shares. According to the plaintiff, the partition deed fraudulently executed by the late husband of the 1st defendant was disclosed only at the time when the relatives of the parties and the police intervened in the dispute. It is also stated that, though earnest efforts were made to settle the disputes at the intervention of mediators, all those efforts were in vain. Based on the aforesaid contentions, the suit has been instituted by the plaintiff. In the application filed by the plaintiff along with the suit as I.A.No.1/2024, he had sought a temporary injunction restraining the respondents therein (defendants 1 to 3 in the suit) from making constructions in the suit property, committing encroachments exceeding their lawful share and creating boundaries or executing documents relating to the said property. On 06.04.2024, the learned Sub Judge passed an order directing the parties to maintain status quo in respect of the suit properties, which was later on vacated.

The respondents in I.A.No.1/2024 (defendants 1 to 3) opposed the suit and application contending that there was absolutely no bona fides in it. According to the respondents, the plaintiff, who was a party to the partition deed under challenge through his power of attorney holder, cannot now challenge the said partition deed and raise a contention that it is vitiated by fraud and misrepresentation. It is the further contention of the respondents that the challenge raised by the plaintiff against the above partition deed of the year 2016, is hopelessly barred by limitation. According to the respondents, the draft of the aforesaid partition deed was sent to the petitioner before getting it executed, and the proceedings towards registration were initiated only after obtaining his concurrence. With the aforesaid contentions, the respondents resisted the request for temporary injunction of the plaintiff.

The learned Sub Judge, after hearing both sides, declined to grant the relief of temporary injunction prayed for by the plaintiffs due to three reasons. Firstly, it is observed in the impugned order that no injunction can be granted against the true owner. Secondly, the court below found that the plaintiff has no personal interest in the issue and hence he is not entitled for the temporary injunction. The third reason stated by the learned Sub Judge for declining temporary injunction is that the plaintiff has failed to plead and substantiate that he is in possession of the suit property, and that due to the act of the respondents his peaceful possession was disturbed. Thus it is stated in the impugned order that no injunction could be granted since the plaintiff is not in possession of the suit property.

Heard the learned counsel for the appellant/plaintiff and the learned counsel for the respondents (defendants 1 to 3).

The learned counsel for the appellant would contend that the respondents are making hectic efforts to make permanent constructions over a vast area of the suit property to the detriment of the lawful rights of the appellant, and hence it is highly necessary to prevent them from proceeding further in that regard. According to the learned counsel for the appellant, if the respondents succeed in their attempt to make permanent constructions in the suit property encroaching into those portions over which the appellant is having right, it would cause irreparable damage and sufferings to the appellant. It is pointed out that there is every chance of the appellant getting a decree in his favour in the suit, and that he may not be able to enjoy the fruits of the decree if the respondents succeed in their plans of committing encroachments exceeding the limited share to which they are entitled.

Per contra, the learned counsel for the respondents would contend that the Court below has rightly observed that the elements of prima facie case, balance of convenience and irreparable injury are in their favour, and hence the appellant is not entitled to have the relief of temporary injunction prayed for by him. It is the further contention of the learned counsel for the respondents that the respondents had made all preparations for the construction of an industrial building at the portion of the suit property, upon which they had obtained right from their predecessor-in-interest. The learned counsel for the respondents would also contend that the appellant cannot challenge the partition deed of the year 2016, in which his mother is also a signatory in her individual capacity as well as in her capacity as the power of attorney holder of the appellant. It is thus stated that there are absolutely no grounds to doubt the genuineness of the partition deed of the year 2016, which the appellant now challenges.

Admittedly, the suit property originally belonged to the father of the appellant. After his death, the appellant's father’s mother got 1/6 share over the said property as per the relevant provisions of the Muslim Law of Inheritance. It is the above said 1/6 share which she gifted in favour of the husband of the 1st respondent. Though the share of the 1st respondent’s husband was only one sixth of the suit property, in the partition deed executed in the year 2016, the share set apart to him is almost three times the share which he could have obtained, if it was limited to the 1/6 share conveyed to him by his mother. However, the above said partition deed does not contain any indication about the reason why an enhanced share has been set apart to the 1st respondent’s husband. On the other hand, the recitals in the above said partition deed are to the effect that the share of the 1st respondent’s husband has its genesis from the gift deed executed by the appellant’s father’s mother in his favour. If that be so, the 1st respondent’s husband cannot be expected to have allotment of any share far exceeding in extent of the 1/6 share which was conveyed to him by his mother. As there is nothing stated in the partition deed as to the reason why an enhanced share is set apart to the 1st respondent’s husband, it is not possible to brush aside the challenge raised by the appellant that the execution of the said partition deed is vitiated by fraud and misrepresentation. True that, the appellant is represented in that document through his mother (4th defendant in the suit) as power of attorney holder. However, he would contend that his mother is a pardanashin lady, and that the first defendant’s husband had managed to get that partition deed executed by taking recourse to deceitful means. Anyway, it is a matter which cannot be decided at this stage of the proceedings. But the fact remains that the appellant has succeeded in bringing out an arguable and debatable case. Needless to say, that the appellant has got a prima facie case on this matter.

While considering the elements of balance of convenience and irreparable injury also, it is not possible to say that the appellant is disqualified to get the temporary injunction prayed for. This is because the records produced by the respondents itself would reveal that they have started arrangements for making permanent construction over a vast area of the suit property, that too, after several months from the date of institution of the suit. The site approval and building permit dated 23.04.2024 (Ext.B1) would reveal that the respondents have sought approval of the Alangad Grama Panchayath for the construction of a building of area 653.98 Sq.mts which almost covers the middle portion of the entire property. If the respondents erect a permanent construction over that portion of the suit property, it would definitely cause fetter for the appellant in getting his due share set apart, if he ultimately succeeds in getting a decree as prayed for in his suit. It is true that the Court below is empowered to pass appropriate directions for dismantling the building or to make other efficacious arrangements in respect of the said building at the appropriate stage of final decree proceedings or execution, if the appellant is able to win the suit and get the allocation of share as claimed by him. However, such directions and arrangements are likely to cause loss and hardships to both parties, and it is better to avoid such a situation. Thus the elements of balance of convenience and irreparable injury are also in favour of the appellant.

The observations of the learned Sub Judge in the impugned order about the impossibility of granting injunction against the true owner, the absence of personal interest of the appellant over the suit property etc. are apparently baseless, since nobody could dispute the right of co-ownership of the appellant over the suit property. The Sub Judge seems to be under the impression that the aspect of possession relevant in the case of temporary injunctions against trespass has got applicability in every case, irrespective of the right of a co-owner to seek interim injunction to prevent invasion over his fractional share over the property. It appears that the learned Sub Judge was under a total misconception about the right of co-ownership of the appellant over the suit property. So also, there is no basis for the observation of the learned Sub Judge that the elements of prima facie case, balance of convenience and irreparable injury favoured the respondents.

Having regard to the rival contentions raised by the parties, as well as the facts and circumstances of the case as borne out of the records, it appears to be highly essential to ensure that the present state of the suit property, as it exists now, has to be preserved during the pendency of the suit. Therefore, the appellant is entitled for a temporary injunction restraining the respondents from making any change to the present state and condition of the suit property.

In the result, the appeal stands allowed. The impugned order of the learned Sub Judge is set aside. The respondents are restrained by temporary injunction till the disposal of the suit from making any change to the present state and condition of the suit property.