The High Court dismissed an original petition challenging the Munsiff's order in a suit for recovery of possession. The Court held that the order allowing roof construction did not prejudice the petitioner who sought removal of the entire structure upon title determination.
The original petition challenging the lower court order was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933
OP(C).No. 2085 of 2011(O) ------------------------IN IA 895/2011 IN OS.74/2011 of M.C.,PARAPPANANGADI ....................
PETITIONER:
------------------
MUHAMMEDKUTTY, AGED 65 YEARS, S/O.KOGENTE CHERUPURAKKAL PORUKUTTY, PARAPPANANGADY AMSOM DESOM.
BY ADVS. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR SMT.M.S.KIRAN
RESPONDENT(S): ---------------
ALIPATHU NAFEESAKUTTY, AGED 40 YEARS, W/O.HABEEBA THANGAL, ARIYALLUR AMSOM DESOM, ARIYALLUR P.O., MALAPPURAM DISTRICT.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2085 of 2011
APPENDIX
PETITIONER'S EXHIBITS:
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
smvd
THOMAS P JOSEPH, J.
O.P(C).No.2085 of 2011
Dated this 05th day of July, 2011
JUDGMENT
Petitioner claimed that plaint B schedule belongs to him as per document No.2132 of 1982. It is the further claim that plaint A schedule which formed part of plaint B schedule was trespassed upon by the respondent at a time when petitioner was not in station on account of various reasons. Respondent started construction of a building for his residence encroaching into plaint A schedule as well. At that stage, petitioner filed O.S.No.74 of 0211 in the Court of learned Munsiff, Parappanangadi for recovery of possession of plaint A schedule (on the strength of his title) after demolishing that part of the structure respondent has constructed in the said property and for other reliefs. Respondent, on getting summons in the suit rushed to the Court and filed I.A.No.895 of 2011 seeking permission to construct roof of the building for his residence. He made an undertaking that in case the suit is decreed, he will demolish that part of the house and hand over possession of property found to be belonging to the petitioner. The application was resisted by petitioner. Learned Munsiff passed Ext.P7, order allowing respondent to
O.P(C).No.2085 of 2011
-: 2 :-
construct roof of the structure and reside there but making it clear that respondent shall complete construction of the house in the light of the permission granted and that he shall be bound to remove the construction if it is found that the house or any portion of the house is situated in the property of petitioner. Petitioner is aggrieved by that order and has filed this original petition in challenge of it. Learned counsel has submitted that respondent had not even filed written statement raising his contentions. The Advocate Commissioner has clearly demarcated the property trespassed upon by the respondent. In the circumstance learned Munsiff was not correct in granting permission to the respondent to put up a permanent roof for the structure even if it was necessary to allow put up a temporary roof over the structure already built.
O.P(C).No.2085 of 2011
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respondent during the pendancy of the suit as well. Respondent has undertaken that he will remove that part of the structure if found in the property belonging to the petitioner. These are sufficient to safeguard the interest of petitioner. I am not inclined to think that court below has committed any illegality or injustice requiring this Court to interfere under Article.227 of the Constitution.
Resultantly this original petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-
2 issues framed by the court
Whether the High Court should interfere with the order of the learned Munsiff allowing the respondent to construct a roof on the disputed property.
Whether the petitioner is prejudiced by the order allowing the roof construction as the case seeks recovery of possession and removal of the entire structure.
Muhammadkutty
Alipathu Nafeesakutty
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
