IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 530 of 2010(O)
1. VIJAYAMOHANAN.P.
... Petitioner
Vs
1. SURENDRAN
... Respondent
For Petitioner :SRI.S.MOHAMMED AL RAFI
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :02/11/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) No.530 of 2010
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Dated this the 02nd day of November, 2010
J U D G M E N T
Plaintiff in O.S. No.235 of 2009 of the court of learned Sub
Judge, Neyyattinkara is the petitioner before me aggrieved by the
dismissal of I.A. No.1638 of 2009 for an order of temporary
injunction which is confirmed by the learned Additional District
Judge-II, Thiruvananthapuram in C.M.A. No.31 of 2010. The suit
concerns 20 cents and a building thereon described as plaint B
schedule and said to be forming part of plaint A schedule – 40
cents. It is the case of petitioner that he had undivided half share
in plaint A schedule as per document No.2622 of 1995. Petitioner
borrowed certain amount from the respondent who is a money
lender and as security for repayment of the said amount
transferred his undivided half share in plaint A schedule to the
respondent as per document No.1917 of 2006. But petitioner
continued to be in possession and enjoyment of the property. He
completed construction of the building in the property with the
loan availed by him from the Uco Bank. While so respondent told
that there is some mis-description in the schedule of document
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No.1917 of 2006 and requested petitioner to correct the same.
Accordingly Ext.A8, correction deed was executed which, later,
petitioner learnt, was concerning plaint B schedule and the
building thereon. Petitioner, claiming that he is in possession of
plaint B schedule property as well sued respondent for a
declaration that Ext.A8, correction deed is null and void and for
prohibitory injunction against respondent inducting strangers or
tenants into plaint B schedule property and building and for other
reliefs. Respondent contended that he purchased plaint B
schedule property as per document No.1917 of 2006 and that the
mis-description in the schedule of that document was corrected
as per Ext.A8, which was voluntarily executed by petitioner. He
denied that transaction was merely as a security for the loan. In
respect of claim of possession both sides raised respective
contentions and adduced evidence which includes possession
certificates in favour of both. In the meantime a brother of
petitioner filed another suit against petitioner and respondent
seeking certain reliefs. Learned Sub Judge based on the evidence
on record found that claim of petitioner that he is in possession of
the suit property cannot prima facie be accepted and dismissed
I.A. No.1638 of 2009. That has been confirmed by the learned
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Additional District Judge. It is contended by learned counsel that
on the evidence on record finding entered by the courts below are
erroneous.
2. I have gone through the orders under challenge and
as I stated, both sides produced some evidence in support of
their respective claim of possession. It is not disputed that
Exts.A2 and A8 as it now stand concern plaint B schedule as if
right, title, interest and possession of petitioner in that property
was transferred to the respondent. It requires evidence to decide
whether Ext.A2 was executed only as a security and Ext.A8 was
got executed by the respondent in the manner contended by
petitioner. Both sides also produced receipts for payment of
revenue for the land and tax for the building, not to say about the
possession certificates in their favour. After consideration of the
documentary evidence courts below found that prima facie case
of petitioner cannot be accepted. That is a finding based on the
available materials on record which cannot be said to be perverse.
Nor could it be said that courts below have acted exceeding their
jurisdiction. I therefore find no reason to interfere with the
impugned orders in exercise of the supervisory power under
Article 227 of the Constitution of India.
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3. Learned counsel for petitioner submitted that learned
Sub Judge has made certain observations against bona fides of
petitioner and his conduct. Learned counsel also requests that
learned Sub Judge may be directed to dispose of the suit
untrammelled by any observations in the impugned
order/judgment. I direct the learned Sub Judge to dispose of the
suit on its merit untrammelled by the observations/findings
contained in the impugned order/judgment or in this judgment.
With the above observation this Original Petition is
dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv