IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 702 of 2010(O)
1. THEKKEPURAYIL ABDULLA,
... Petitioner
Vs
1. KANHIRANGADAN GOPI,AGED ABOUT 50 YEARS,
... Respondent
2. CHEKKINATAKATH MUTHALIB,
For Petitioner :SRI.T.C.GOVINDA SWAMY
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/11/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.702 of 2010
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Dated this the 15th day of November, 2010.
JUDGMENT
Plaintiff in O.S.No.34 of 2010 of the court of learned Munsiff, Payyanur
and appellant in C.M.A.No.30 of 2010 of the court of learned Sub Judge,
Payyannur is the petitioner before me challenging concurrent order of the courts
below refusing to grant temporary prohibitory injunction concerning plaint B and
C schedule properties. According to the petitioner, entire properties belonged to
him he having got it under an oral lease from the jenmi, Yasodhakutty in the
year 1962. He has been paying the land revenue for the property. While so he
gave ten cents each on the south and west of the entire property to Ismail and
Hajira (orally) who have constructed buildings in the said property and are
occupying the same . Petitioner sought recovery of possession of plaint D, E
and F schedule properties from defendant Nos.3 to 7 and a decree for
prohibitory injunction against respondents/defendant Nos.1 and 2 trespassing
into plaint B and C schedules claiming title and possession of the property and
alleging attempt to trespass by the respondents. Respondents/defendant Nos.1
and 2 denied title and possession claimed by petitioner and contended that
40.47 hectors in R.S.No.7/2 belonged to respondent No.1, he having got it from
Vengayil Tharwad under an oral lease. He claimed that he has been paying
land revenue for the property. Respondent No.1 assigned 15 cents out of the
said property to respondent No.2 as per a registered deed dated 05.07.2008.
It is the further case of respondents that respondent No.1 sold another ten cents
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to E.V. Narayanan and the remaining 75 cents is in the possession of
respondent No.1. He constructed compound wall on all sides of the disputed
property. Respondent No.2 has initiated S.M. No.50 of 2009 before the Land
Tribunal, Payyannur for purchase of landlord’s right. Petitioner produced
Exts.A1 to A4, receipts for payment of basic tax for 1970-71, 1975-76 and
1985-86. Respondents produced Exts.B1 to B8. It takes in receipts for payment
of revenue for the year 2007 and thereafter and, certificate of possession issued
by the Village Officer. Ext.B6 is a rent receipt dated 02.12.1961 issued by one
Balakrishnan Nair of Vengayil Tharwad wherefrom respondent No. 1 is said to
have obtained oral lease. Ext.B7 dated 17.12.1961 is a similar receipt and
Ext.B8 dated 07.07.2009. is a receipt for payment of land revenue. Exts.C1
and C2 are report and sketch submitted by the Advocate Commissioner.
Learned Munsiff observed that claim of petitioner for possession of plaint B and
C schedules cannot prima facie be accepted and accordingly dismissed
I.A.No.577 of 2010. That was confirmed by the appellate court. That judgment
is under challenge in this petition. Learned counsel for petitioner contends that
finding entered by the courts below are erroneous and that a look at Exts.C1 and
C2, report and sketch would show that attempt has been made by respondents
to trespass into the property recently.
2. In Exts.C1 and C2 (produced and marked in this proceeding as
Ext.P5) Advocate Commissioner has referred to what he has seen at the spot
and so far as plaint B schedule identified by the Advocate Commissioner as
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pointed out by the petitioner is concerned, he has reported that B schedule
property was bounded by boulder stones. From that I am unable to reach a
conclusion even prima facie at this stage that petitioner is in possession of the
suit property or there was attempt to trespass by the respondents. So far as
respondents are concerned, respondent No.1 has produced Exts.B6 and B7 for
alleged payment of rent to Balakrishnan, claimed to be a member of the
Vengayil Tharwad from where respondent No.1 is said to have obtained oral
lease of the suit property. It is in the above circumstances that courts below
found no prima facie case for petitioner and dismissed I.A.No.577 of 2010 . I
am unable to say that courts below have refused to exercise jurisdiction vested
in them or exercised it in a perverse manner so that interference under Article
227 of the Constitution is not required. Learned Munsiff is directed to dispose of
the suit untrammelled by any observation contained in the impugned
order/judgment or in the judgment of this Court.
Petition is dismissed.
THOMAS P.JOSEPH,
Judge.
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