Dismissed

Treesa Lazer v. Vinu

Kerala HC6 Sept 2016OP(C)/1775/2015

Case brief

AI extract

What is this about?

Petitioners challenging an interim injunction granted in a property suit under Article 227 argued they were in possession. The High Court held documents showing dones and mutation were prima facie sufficient, dismissing the petition as below courts exercised discretion correctly.

What did the court decide?

Petition dismissed due to lack of primafacie proof of possession by petitioners and no perversity in lower court's exercise of discretion.

Treesa Lazer Vs Vinu — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938

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OP(C).No. 1775 of 2015 (O)

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ORDER DTD.12.11.2014 IN IA.7055/2014 IN OS 1641/ OF ADDL. MUNSIFF COURT-I, THIRUVANANTHAPURAM ORDER DTD.19.6.2015 IN CMA.97/2014 OF ADDL. DISTRICT COURT-IV, THIRUVANANTHAPURAM

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PETITIONER(S):

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1. TREESA LAZER, AGED 44 YEARS, W/O.LAZER, D/O.BENCHAMIN FERNANDES, T.C.NO.100/325, HOUSE NO.126-1, PALLITHURA COLONY, PALLITHURA P.O., PALLITHURA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM.

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2. LAZER, AGED 44 YEARS, S/O.MANUAL FERNANDES, TC.NO.100/325, HOUSE NO.126-A, PALLITHURA COLONY,PALLITHURA P.O., PALLITHURA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM.

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BY ADVS.SRI.C.A.CHACKO

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SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER

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RESPONDENT(S):

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VINU, AGED 27 YEARS, W/O.GOLBERT GABRIEL, THYVILAKATHU VEEDU, TC.NO.81/333, ATTIPRA VILLAGE, VALIYA VELI P.O., THIRUVANANTHAPURAM - 695 001.

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BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.V.FRANCIS

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 1775 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS -----------------------

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EXHIBIT-P1: TRUE COPY OF IA NO.7055/2015 FILED BY RESPONDENT. EXHIBIT-P2: TRUE COPY OF OBJECTION FILED BY PETITIONERS. EXHIBIT-P3: TRUE COPY OF ORDER DATED 12/11/2014 IN EXT.P1. EXHIBIT-P4: TRUE COPY OF CMA.NO.97/14 FILED BY PETITIONERS. EXHIBIT-P5: TRUE COPY OF ORDER DATED 19/6/2015 IN EXT.P4. EXHIBIT-P6: TRUE COPY OF THE COMMISSION REPORT FILED IN O.S.NO.1854/2014.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

Msv/

K.RAMAKRISHNAN, J

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O.P.(C).1775 of 2015

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- - - - Dated 6^th September, 2016

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JUDGMENT

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The petitioners, who are the defendants in O.S.1641 of 2014 of the I Additional Munsiff Court, Thiruvananthapuram are challenging the concurrent findings of the court below in I.A.7055 of 2014 confirmed in C.M.A.97 of 2014 of the Additional District Court-IV, Thiruvananthapuram, under Article 227 of the Constitution of India.

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It is alleged in the petition that the respondent herein filed O.S.1641 of 2014 before the Additional Munsiff Court, Thiruvananthapuram for injunction restraining the petitioners from trespassing into the plaint schedule property causing interference to his peaceful possession. According to the plaintiff in that Suit, he obtained the property as per Sale Deed No.882 of 2014 dated 24.2.2014 along with her

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OP(C).1775/16

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husband Golbert Gabriel and they were in possession of the property and the property is being looked by her mother Smt.Baby. The property originally belonged to one Jerom Peter as per Gift Deed No.1997/1988 dated 30.8.1988 and he accepted the Gift and on his death it devolved on his wife and four children, who executed the above said Sale Deed in favour of the plaintiffs in that Suit. The first defendant is the younger sister of Smt. Mable Jerom and the second defendant is her husband. They have no right over the plaint schedule property. They filed P.L.No.3044/2014 on 29.5.2014 against their assignor Smt.Mable Jerom. She filed objection statement before the District Legal Services authority denying the claim of the first defendant. Since the matter could not be considered by the Legal Services Authority, the second defendant, with the help of others, is trying to trespass into the property and also filed

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OP(C).1775/16

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unnecessary complaints before the Thumpa police station. So, that prompted the respondent to file the Suit. Along with the Suit, they filed Ext.P1 I.A.7055 of 2014 for interim injunction restraining the respondents in that application who are the petitioners herein from trespassing into the plaint schedule property and causing obstruction to the peaceful enjoyment of the property. The petitioners filed Ext.P2 objection to the same stating that neither the plaintff nor her predecessor obtained possession of the property. The Gift Deed was not acted upon and they are in possession of the property and as such the plaintiff is not entitled to get any right and they prayed for dismissal of the application. According to them, the first defendant and one Mable Jerom are sisters born to late Benchamin Fernandez and Jespin Fernandes. The plaint schedule property is originally belonged to Benchamin Fernandez,

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OP(C).1775/16

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the father of the first defendant and the said Mable Jerom. The first defendant along with her family was residing with her parents in the house for the last 30 years. While so, the husband of the said Mable Jerom and her husband Jerome obtained a Gift Deed No.1997/1998 from Benchamin Fernandez by coercion and undue influence and he had no intention to gift the property to them. In fact, he intended to give the property to the first defendant. It was at that time that the above said Gift Deed was obtained. When he realized the mischief committed by Mable Jerome and her husband 19 years back when he was bedridden in the presence of all his seven children including Mable Jerome and her husband, he had effected a settlement on 5.5.1995 and expressed his desire to give the property to the first defendant which was agreed by Jerome, but unfortunately he died. So the plaintiffs are not entitled to get any right over the

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OP(C).1775/16

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property. They also filed O.S.1854 of 2014 before the same Court for declaration of title and possession over the plaint schedule property and that is pending. So they prayed for the dismissal of the application.

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After hearing both sides, the

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learned Magistrate by Ext.P3 order, allowed the application and granted interim injunction which was challenged by the petitioner by filing Ext.P4 Appeal as C.M.A.97 of 2014 before the District Court, Thiruvananthapuram which was made over to Additional District Court-IV, Thiruvananthapuram for disposal and the learned Additional District Judge by Ext.P5 order confirmed the order of injunction passed. Aggrieved by the same, the present petition has been filed.

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Heard Smt.Megha K.Xavier the learned

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counsel for the petitioners and Sri.T.S.Harikumar the learned counsel

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OP(C).1775/16

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appearing for the respondent.

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The learned counsel for the petitioners submitted that the Commissioner's report in O.S.1854/2014 will show that the properties in the possession of the petitioners herein and the respondents therein who are the defendants in that Suit, are not in possession of the property. Further both the courts have not properly understood the documents produced and thereby the courts below are not justified in granting interim injunction restraining petitioners from entering the property.

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On the other hand, the learned counsel for the respondents submitted that the Gift Deed is of the year 1988 and that was accepted by the donees and it is long thereafter that the property was sold in the name of the respondents and there is no document to show that the defendants are in possession of the property. The court below

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OP(C).1775/16

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had considered all these aspects and entered into a finding in favour of the respondent and that the discretion exercised in favour of the plaintiff should not be interfered with by this Court invoking power under Article 227 of the Constitution of India.

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It is an admitted fact that the plaint schedule property with the building therein originally belonged to Benchamin Fernandez, the father of the first defendant and one of the assignors of the respondent, namely, Mable Jerome. It is also in a way admitted that Ext.A2 Gift Deed was executed by Benchamin Fernandez in favour of Jerome in the year 1988 as Gift Deed No.1997/1988 dated 30.8.1988 and thereafter, the mutation was effected in the name of the donees evidenced by Ext.A3 tax receipt. Plaintiff is claiming right on the basis of Ext.A1 Sale deed No.882/2014 dated 24.2.2014. It is

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also seen from Ext.A4 that after she purchased the property, the mutation was

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OP(C).1775/16

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effected and she is paying tax for the property. It is seen from Ext.A5 objection filed by Mable Jorome to a petition filed by the first defendant before the Legal Services Authority regarding the alleged fraudulent execution of the Gift deed, all these allegations were denied by them. It will be seen from Ext.A7 that ownership certificate has been given in favour of the respondent in respect of the property. The case of the defendants was that the Gift deed of the year 1988 was obtained by Mable Jerome and her husband fraudulently by coercion from Benchamin Jerome. Before his death in 1995, he convened a meeting of all the children and expressed his willingness to settle the property in favour of the first defendant. But before the same was executed, he died and thereafter the property was sold by Mable Jerome to the present plaintiff and neither Mable Jerome nor her husband nor the respondent herein

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OP(C).1775/16

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were in possession of the property.

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The petitioners are relying on

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Ext.B1 to B11 documents to show that they are residing in the property which alone are not sufficient to come to the conclusion that they are in possession of the same. However, Ext.C1 and Ext.C1(a) will go to show that none were residing in the building situated in the plaint schedule property. If really the petitioners are residing in the property as claimed, their presence could have been noted and no attempt was made by them to set aside the commissioner's report or seeking remission to find out as to whether the facts mentioned by the commissioner in Ext.C1 and C1(a) were proper or not. Admittedly, there was an interim injunction granted along with the suit. Ext.P6 is the commissioner's report produced by the petitioners in O.S.1854/2014 which was filed by them at a later point of time after they obtained interim order

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OP(C).1775/16

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granted against them in the present suit and the commissioner is stated to have inspected the property on 30.9.2014 and he had mentioned that it appears that the plaintiff and her children are residing in that house. He had formed this opinion on the basis of the evidence collected which he not expected to collect and the Commissioner is only expected to report and mark whether he had seen at the spot.

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Admittedly, there was a Gift deed in favour of the predecessor of the plaintiff which is of the year 1988 which was not challenged or cancelled by the donor who executed the document. It is in a way admitted by the defendants also but according to them it was obtained by coercion or undue influence which is a matter to be considered later on the basis of the evidence in the Suit filed by them seeking declaration that the document is not valid. When there is a Gift Deed it is prima

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OP(C).1775/16

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facie seen accepted by the donees and thereafter they have assigned the property in favour of the respondents herein. There is a presumption that they are in possession of the property. The documents produced by the petitioners before the court below are not sufficient to prove that they are in possession of the building as claimed.

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Under the above circumstances the court below was perfectly justified in prima facie coming to the conclusion that the defendants had failed to prove their possession and the plaintiffs had proved their possession and rightly granted injunction in favour of the plaintiff in that Suit and that was confirmed by the appellate court as well. When a discretion has been exercised by the courts below, in granting an injunction and refusing to vacate the injunction granted, unless the order is found to be perverse and illegal, this Court is not accepted to interfere

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OP(C).1775/16

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invoking the supervisory jurisdiction under Article 227 of the Constitution of India. So under the circumstances, there is no merit in the petition and the same is liable to be dismissed.

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Considering the fact that there are two Suits pending in respect of the same subject matter and pleadings are not complete in the other Suit filed by the petitioners herein, it is not possible for this court to direct the court below also to expedite the disposal of cases. However, after pleadings are complete, if the parties file an application for joint trial, that can be considered by the courts below and pass appropriate orders and try to expedite the disposal of both cases as expeditiously as possible untrammelled by the observations made by the courts below and also this court in considering the interim injunction application and dispose of the cases in accordance with law.

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With the above observation, the

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petition is dismissed.

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K.RAMAKRISHNAN Judge

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Mrcs/6.9.2016

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//True copy//

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P.S to Judge

Treesa Lazer v. Vinu

Case brief

What is this about?

What did the court decide?

Treesa Lazer v. Vinu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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