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Judgment
P. Bhavadasan, J.—Under challenge is the order in CMA No. 74 of 2013 of the III Addl. District Court, Kozhikode whereby the said court confirmed the dismissal of the Interlocutory Application namely, I.A. 2667 of 2013 of the trial court whereby the plaintiffs in the suit sought for interim injunction against the respondent.
Plaint B schedule property, which is the subject matter of the suit is claimed to be a portion of plaint A schedule property, which belonged to the plaintiffs. According to the plaintiffs the plaint B schedule property was given on oral lease to one Chacko for the purpose of running a workshop. According to the plaintiffs they recently found that the thatched shed in plaint B schedule had been pulled down and a commercial structure is being put up. Later, they came to know that Chacko was no longer in possession of the property and some strangers have trespassed into the property. On the basis of the alleged trespass, the suit was laid and I.A. No. 2667/2013 was filed for temporary injunction.
It would appear from the record that an ex parte order of decree was granted. The respondent entered appearance and filed a detailed counter. For the purpose of the Interlocutory Application, the plaintiffs marked Exts.A1 to A4 and the defendant marked B1 to B18. C1 and C1(a) are the commissioner''s report and sketch.
The trial court found that the claim of trespass alleged by the plaintiffs in the Interlocutory Application is not proved and the property had been in the possession of Chacko initially and subsequently in the possession of others and ultimately falling into the hands of the respondent herein. The respondent also pointed out that a purchase certificate had been issued in respect of the property and in land acquisition proceedings he had obtained portion of the compensation also.
The courts below were impressed by the contentions raised by the respondent and documents produced by him and found that the plaintiffs are not entitled to interim relief.
Thus the Interlocutory Application was dismissed, which was confirmed in appeal.
Learned counsel appearing for the petitioners before this Court assailed the findings of the courts below on several grounds. Especially on the ground that the courts below have placed considerable reliance on the purchase certificate said to have been obtained by the respondent which according to the learned counsel, is not binding on the petitioners because it was without notice to the petitioners. It is also pointed out that the workshop was being carried on in B schedule property and it was only recently noticed that the structure has been pulled down and another structure is being put up there. Even assuming that there was a lease, the lessee or his successor in interest is not entitled to the benefit of the Land Reforms Act. Relying on Sec. 3(1) of the Kerala Land Reforms Act, it was contended that the purchase certificate if any obtained cannot have any legal sanction. If the purchase certificate is excluded from consideration the present respondent has no right in the property and it is contended therefore that the alleged construction may be restrained by way of interim injunction.
If the facts are stated as above, the present respondent may have no right over the property. The suit was laid as if the respondent was a rank trespasser attempting to put up a structure. When the respondent entered appearance and filed counter and produced 18 documents in respect of his case, the courts below found that the claim of the respondent that B schedule property was outstanding in the possession and enjoyment of Chacko and his successors in interest for the last more than 60 years and subsequently and ultimately came into the hands of the respondent. Of course, both the courts below have placed some reliance on the purchase certificate also. Whether it was issued with notice to the plaintiffs or not is a matter to be gone into by the trial court at the time of disposal of the suit. This Court has given a due consideration to the fact that the petitioners have filed an appeal against the order in OA.
It can be seen that the courts below did not place reliance solely on the purchase certificate, even though it was one of the important factors before the court below. The courts below found that a portion of the property has been acquired for widening the road and in that proceedings, the respondent before this Court had obtained compensation also. The courts below found that the receipt of compensation was with the knowledge of the plaintiffs church.
The courts below were therefore, not inclined to accept the theory of licence put forward by the plaintiffs and found that the construction is with the valid permission from the authorities concerned. The respondent produced several registered documents from which it could be seen that Chacko had assigned the property and there was subsequent assignments also and ultimately the property coming into the hands of the respondent herein.
It is contended on behalf of the petitioners that pacca construction is being carried on in the property of the church which would cause irreparable injury and loss to them and therefore, further construction may not be permitted.
It is true that, the right enjoyed by the respondent is a matter for adjudication. However, as rightly noticed by the courts below, it is difficult to accept the claim made by the plaintiffs that the respondent is a rank trespasser who had no right over the property.
The commissioner noticed that construction are going on in the property. In the light of the fact that the courts below were disinclined to accept the version given by the plaintiffs and since the courts below were not inclined to accept that the respondent has no right over the property, the courts below were perfectly justified in coming to the conclusion that neither balance of convenience nor irreparable loss caused to the favour of the plaintiffs.
Considering the totality of the case, it could not be said that the finding of the courts below are so perverse warranting interference under Article 227 of the Constitution of India.
Considering the interest and all other aspects, it is felt that the impugned order passed by the trial court cannot stand and so, it is set aside. The trial court may make every endeavour to dispose of the suit at the earliest.
This petition is therefore, disposed of with a direction to the I Addl. Munsiff, Kozhikode to dispose of the suit within a period of nine months from the date of receipt of a copy of this judgment.