IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3567 of 2010(O)
1. SHANAVAS, SHAMEER MANZIL,
... Petitioner
Vs
1. JAHANGIR, NAJIM SHAH MANZIL,
... Respondent
2. SAINABA BEEVI, NAJIM SHAH MANZIL,
3. LATHEEFA BEEVI, NAJIM SHAH MANZIL,
4. NISTHAR, BASHEER MANZIL,
5. MIRJAFAR, MADAVILAKOM VEEDU,
6. SULFIKAR, AL-MINARA MANZIL,
For Petitioner :SRI.M.R.RAJESH
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/02/2010
O R D E R
V. RAMKUMAR , J.
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W.P.(C). No. 3567 of 2010
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Dated this the 5th day of February, 2010.
JUDGMENT
The plaintiff in O.S. No. 203 of 2007 on the file of the
Munsiff’s Court, Attingal is the writ petitioner. He
challenges Ext.P9 common judgment in C.M.A. Nos. 28 and
29 of 2008 passed by the Sub Court, Attingal. The
aforementioned suit is one for a declaration that the
inclusion of the plaint schedule property as item No. 1 of B
schedule to a registered partition deed, gift deed and
release deed is void and not binding on the plaintiff or the
plaint schedule property and that the plaintiff and his
successors are legally entitled to the said property.
2. Pending suit, the petitioner filed Ext.P5 application
for interim injunction against alienation and Ext.P6
application for the appointment of a receiver. The
contesting defendants also filed an application for an
injunction against the plaintiff. As per Ext.P7 order dated
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21.08.2008, the trial court passed an order of injunction in
terms of Ext.P5 petition and disallowed the injunction
prayed for by the contesting defendants. As per Ext.P8
order, the trial court appointed a panel receiver in respect
of the property which was possessed by defendants 1, 4 and
6. The contesting defendants filed three separate appeals
before the Sub Court, Attingal. As per Ext.P9 common
judgment dated 12.01.2010, the lower appellate court
allowed the appeals and directed the panel receiver to hand
over possession of the property back to the respective
defendants who were in possession of the same and
reversed Exts.P7 and P8 orders and granted interim
injunction as prayed for by the contesting defendants. It is
aggrieved by the said common judgment that the plaintiff
has come before this Court.
3. When the property was not in medio and there was
no scramble for possession, the trial court was wrong in
appointing a receiver in respect of the property and thereby
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dispossessing defendants 1, 4 and 6 of the portions
possessed by them. Even assuming that a case was made
out for the appointment of a receiver, the appointment of a
panel receiver was certainly not justified. The lower
appellate court was also fully justified in granting the
injunction prayed for by the contesting defendants. I do not
find any good ground to interfere with Ext.P9 common
judgment passed by the lower appellate court.
The learned counsel for the petitioner submitted that
this is a fit case where defendants 1, 4 and 6 ought to have
been at least appointed as the party receivers with a duty to
account for the income from the properties. That is a
matter which will have to be considered if an application in
that behalf is filed before the trial court. The learned
counsel for the petitioner also submitted that the
observation by the lower appellate court that the suit itself
is bad for non joinder of necessary parties and therefore not
maintainable, may not be justified since the mosque in
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question had itself come forward with an application for
impleadment and the same is pending before the trial court.
That again is a matter which the trial court will have to
consider. I, therefore, dismiss this writ petition challenging
Ext.P9 common judgment. The trial court shall dispose of
the suit untramelled by any of the observations or findings
in the impugned judgment as well as in the orders of the
trial court.
Dated this the 5th day of February, 2010.
V. RAMKUMAR, JUDGE.
rv
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