Partly allowed

Basheer v. P.a.Jafar

Kerala HC1 Mar 2013OP(C)/1638/2012

Case brief

AI extract

What is this about?

The High Court allowed part of the original petition. It set aside the District Court's judgment dismissing the temporary injunction application and modified the injunction order to permit the petitioner to take yields from the suit property subject to rendering accounts every three months, while directing parties to maintain the property condition.

What did the court decide?

Set aside judgment dated 28.11.2011 in CMA No.26/2010. Modified order on I.A. No.6143/2009 to permit petitioner to take yields subject to rendering accounts every three months and directing parties to

Basheer Vs P.a.Jafar — Partition | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

¶4

FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934

¶5

OP(C).No. 1638 of 2012 (O)

¶6

AGAINST THE ORDER IN CMA.26/2010 of DISTRICT COURT, ALAPPUZHA

¶7

AGAINST THE ORDER IN OS.732/2009 of ADDL.MUNSIFF COURT, ALAPPUZHA

¶8

PETITIONER(S):

¶9

BASHEER, AGED 58 YEARS, S/O.HASSAN, UDUMBAKKAL HOUSE, KAKKAZHAM P.O, AMBALAPPUZHA.

¶10

BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA

¶11

RESPONDENT(S):

¶12

P.A.JAFAR,AGED 71 YRS, S/O.ABDUL KHADER, RESIDING AT PUTHENVEETTIL HOUSE, PALACEWARD, ALAPPUZHA - 688001.

¶13

BY ADVS. SRI.A.KRISHNAN SRI.V.SATHEESH

¶14

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

OP(C).No. 1638 of 2012 (O)

¶16

APPENDIX

¶17

PETITIONER(S) EXHIBITS

¶18

EXHIBIT P1. THE TRUE COPY OF THE OS NO.732/2009 HON'BLE MUNSIFFS COURT, ALAPPUZHA.

¶19

EXHIBIT P2. THE TRUE COPY OF ORDER IN IA NO.6143/2009 IN OS.732/09.

¶20

EXHIBIT P3. THE TRUE COPY OF THE ORDER IN CMA NO.26/2010 OF DISTRICT COURT, ALAPPUZHA IN OS.732/09.

¶21

RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.A TO JUDGE

LSN

THOMAS P. JOSEPH, J. ===================== Original Petition (civil) No. 1638 of 2012

¶26

============================== Dated this the 1^st day of March, 2013

¶27

JUDGMENT

¶28

Petitioner is the plaintiff in O.S. 732 of 2009 of Munsiff's Court, Alappuzha.

¶29

He sued the respondent for a decree for prohibitory injunction concerning the suit property which is described as 67.61 ares of coconut garden falling within the various survey numbers referred to in the plaint schedule and stated to be covered by sale deed No.5659 of 2008 and release deed No. 5658 of 2008. Petitioner apprehended that respondent may trespass into the property and hence the suit.

¶30

Respondent claimed that a portion of the suit property forms part of suit property belonging to him and he is in possession of that portion of the suit property. Trial court granted an order of temporary injunction vide I.A. No. 43 of 2001.

¶31

Learned District Judge, Alappuzha in CMA No. 26 of 2010 has reversed that order and dismissed I.A. No. 6143 of 2009. Ext.P3, judgment of learned District Judge is under

¶32

O.P.(C) No.1638 of 2012 -: 2 :-

¶33

challenge.

¶34

According to the petitioner, on the immediate west of suit property is Kavungal temple and the property claimed by the respondent is on its further west. Therefore there is no question of respondent claiming any right over the suit property. Learned counsel submitted that the Advocate Commissioner has reported that the suit property has specific boundaries and that the first appellate court in the circumstances was not right in reversing the order on I.A. No. 6143 of 2009.

¶35

Learned counsel for respondent has invited my attention to the report submitted by the Advocate Commissioner where it is stated that local enquiry conducted by the Advocate Commissioner revealed that petitioner was collecting usefrcts from the coconut trees.

¶36

Having regard to the rival contentions, appropriate course is to direct the parties to maintain condition of the property as reported by the Advocate Commissioner in his report.

¶37

So far as yielding improvements are concerned, having regard to the fact that even according to the respondent, he is

¶38

O.P.(C) No.1638 of 2012 -: 3 :-

¶39

only claiming a portion of the suit property, I am inclined to permit petitioner/plaintiff to take the yield of improvements. In the meantime, since the suit is of the year, 2009 learned Munsiff can dispose of the suit as early as possible.

¶40

Resultantly, this original petition is allowed in part as under:-

¶41

1. Ext.P3, judgment dated 28.11.2011 in CMA No.26 of 2010 of the District Court, Alappuzha is set aside.

¶42

1. Order passed by the learned Munsiff, Alappuzha on I.A. No. 6143 of 2009 in O.S. No. 732 of 2009 is modified as under:-

¶43

a) Parties are directed to maintain the condition of the suit as property as reported by the Advocate Commissioner in Ext.C1, report until disposal of the suit.

¶44

b) Petitioner/plaintiff is permitted to take yield from the suit property subject to the condition that once in three months beginning from 01.04.2013, he shall render proper accounts in the trial court. The question as to who is entitled to the income from the suit property or portion

¶45

O.P.(C) No.1638 of 2012 -: 4 :-

¶46

of it shall be decided in the suit.

¶47

c) If any further direction in the matter is required, it is open to the learned Munsiff to issue such direction.

¶48

d) Trial court is directed to expedite trial and disposal of the suit untrammelled by any observation/finding contained in the impugned order/judgment.

¶49

Sd/- THOMAS P.JOSEPH, JUDGE

¶50

smv

¶51

//True copy//

Basheer v. P.a.Jafar

Case brief

What is this about?

What did the court decide?

Basheer v. P.a.Jafar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

The Administrator Vs P.K.Muralikrishnan

Subramanian Potty @ C.R.S.Potty Vs Autocop Indian Pvt. Ltd.

Pullikanakku Mannathu Devi Temple Administrative Committee Vs Prasad

K.S.E.Board Vs T.K.Xavier

George Joseph Vs K.Anilakumari

C.a.Sivan Vs Sree Durga Seva Samajam