The High Court of Kerala dismissed an appeal by a brother challenging an interim injunction. The court upheld the lower courts' ruling, holding that a compromise decree established separate possession rights despite a clause allowing joint sale, and the appellant had sold his share to a third party.
The petition was dismissed in limine.
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 K.RAMAKRISHNAN
TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938
OP(C).No. 2864 of 2016 (O)
ORDER DTD.2.2.2016 IN IA.10865/2015 IN OS.1515/2015 OF ADDITIONAL MUNSIFF COURT-II, ERNAKULAM JUDGMENT DTD.20.8.2016 IN CMA 9/2016 OF ADDITIONAL DISTRICT COURT - VII, ERNAKULAM
PETITIONER(S)/APPELLANT/PETITIONER/DEFENDANT:
SEBASTIAN ALEXIS,
AGED 55 YEARS, S/O LATE ALEXIS, LENTHAPARAMBIL HOUSE, VYTTILA DESOM, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682 019.
BY ADV. SRI.N.K.MOHANLAL
RESPONDENT(S)/RESPONDENT/RESPONDENT/PLAINTIFF:
PYLEE ALEXIS, AGED 62 YEARS, S/O LATE ALEXIS, 12717 NE 86TH STREET,KICRKLAND, WASHINGTON, USA, REP. BY HIS POWER OF ATTORNEY HOLDER, SRI. PAUL, AGED 52 YEARS, S/O LATE MR. JOSEPH, PALAMITTATHU HOUSE, ANGADIKKADAVU, ALANGAD POST, ERNAKULAM DISTRICT-682 019.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
OP(C).No. 2864 of 2016 (O) ---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE ORDER IN I.A.NO.10865/2015. EXHIBIT P2 TRUE PHOTOCOPY OF THE APPELLATE COURT JUDGMENT. EXHIBIT P3 TRUE PHOTOCOPY OF THE COMPROMISE DECREE IN O.S.NO.613/2007.
RESPONDENT(S)' EXHIBITS
NIL
//TRUE COPY//
P.S.TO JUDGE
msv/
K. RAMAKRISHNAN, J.
....................................... O.P.(C).No.2864 of 2016
Dated this the 15th day of November, 2016.
JUDGMENT
The defendant/respondent in IA.No.10865/2015 in
OS.No.1515/2015 on the file of the IInd Additional Munsiff Court, Ernakulam is the petitioner herein. The suit was filed by the respondent herein evidenced by Ext.P1 as OS.No.1515/2015 for permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property and preventing the plaintiff or his agents from making any arrangements for rebuilding in the property. The case of the plaintiff in the plaint was that the plaint schedule property along with other portion originally belonged to late Alexis Pylee and he had executed a Will No.33/1984 and 109/1992 both of Sub Registrar Office, Ernakulam by which it was jointly allotted to the petitioner and respondent. When a dispute arose between the brothers regarding the partition of the joint property, the plaintiff filed a suit for declaration before the Principal Sub Court, Ernakulam as OS.No.613/2007 against the respondent and that was comprised by which the property has been divided among the petitioner and the respondent and the plaint schedule property was allotted to the share of the plaintiff and other portion was allotted to the share of the defendant and as per Clause 2.2 of the compromise petition they have agreed to retain the joint possession of the properties for the limited
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purpose of effecting sale of the property as one block and as per Clause 4 it was further agreed that in the event of any failure to sell the property within one year of the settlement, the petitioner and the respondent would hold and retain the property separately and further agreed for the sale of properties either jointly or separately by the petitioner and the respondent and there would be no interference by either party to obstruct the sale of the properties held separately by them. On the basis of the compromise filed as IA.No.4123/2011, the suit OS.No.613/2007 was disposed of. Later on 10.12.2014 the property allotted to the respondent was sold by him to one Appunni and Lathika Appunni as per document No.3450/2015 of Sub Registrar Office, Maradu. He was trying to trespass into the plaint schedule property thereafter and complaints were made to the District Collector and police and due to their intervention, he has been removed. On 10.11.2015 and 11.11.2015, he illegally entered into the building and removed certain articles. The petitioner is employed in USA and he had engaged a power of attorney to look after his affairs. The building is in a dilapidated condition and he wants to rebuild the building into a residential condition. When the power of attorney holder of the plaintiff went to the property with some workers, the defendant restrained them. Though he personally warned the defendant not to interfere with the possession, he was
O.P.(C).No.2864 of 2016 3
not amenable for the same. That prompted him to file the suit. Along with the suit, the plaintiff filed IA.No.10865/2015 for interim injunction. The respondent filed counter stating that the suit is not maintainable. The contention that he is trying to trespass into the property and obstructed the rebuilding work of the building is not correct. He has been in possession and use of the building despite the compromise decree and the possession has not been severed and delivered to the possession of the petitioner through execution process. The building and property is his ancestral property in which valuables and movables were kept and locked in side the house by the respondent and he used to open the house, relax, sleep and spent time and maintain the house in a good condition. He had admitted the filing of the suit OS.No.613/2007 and compromise decree entered into. The petitioner was never in possession of the property. The respondent filed OS.No.429/2015 against the brother-in-law of the plaintiff and the defendant before the Munsiff Court, Aluva for a decree for permanent prohibitory injunction against committing waste in the plaint schedule property which is pending adjudication wherein the court ordered interim injunction against the respondent in that petition from committing any act of waste. So he prayed for dismissal of the petition.
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the parties. After considering the materials on record, the court below came to the conclusion that the plaintiff has a prima facie case and the defendant has no right or possession over the property and allowed the application. This was challenged by the petitioner by filing C.M.A.No.9/2016 before the District Court, Ernakulam which was made over to the Additional District Court No.VII, Ernakulam for disposal and the learned Additional District Judge by the impugned judgment dismissed the appeal confirming the order by the court below.
O.P.(C).No.2864 of 2016 5
Pylee, their grandfather as per the Will No.33/84 and 109/92 of Sub Registrar Office, Ernakulam and by virtue of the Will, they become the joint owners of the property is not in dispute. It is also not in dispute that the plaintiff filed OS.No.613/2007 before the Sub Court, Ernakulam for a declaration and partition of the property and the same was compromised evidenced by Ext.P3 compromise decree. It will be seen from Ext.P3 that the parties have entered into a compromise after measuring the property and dividing the property with the help of the surveyor and the portion now scheduled as plaint schedule has been allotted to the share of the plaintiff and other portion was allotted to the share of the defendant. It is seen from Clause 2 of the compromise that they agreed to retain joint possession only for the limited purpose of effecting sale of property as one block. Clause 4 of the compromise says that in the event of any failure to sell the property within one year, the plaintiff and defendant will hold and retain the property separately and the sale of the properties may be effected either jointly or separately by the plaintiff and the defendant and there will be no interference by either of the parties to obstruct the sale of the properties separately by them. Both of them declare that they will not make any encumbrances on the respective portions.
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virtue of the compromise, they have severed the properties but retained joint possession only for the purpose of selling it as a single block. It is further clear from the settlement itself that in case the property could not be sold jointly within one year from the date of settlement, they can retain their separate portion independently and they can exercise their right. So the submission made by the counsel for the petitioner that the properties were not separated and it was not delivered through court has no merit because even as per the terms of the compromise, they even decided to keep the property separately and possession have been taken of their respective portion allotted on the basis of the settlement and only for the purpose sale, they wanted to keep it as a joint possession, if possible to sell it to a third party. Admittedly, the petitioner herein had sold his right which he obtained as per the compromise decree to third parties as per Ext.A7 document. So the petitioner is not having any right over the plaint schedule property by virtue of the compromise decree as he had already sold his portion which has been allotted to him as per the compromise decree and the plaintiff is the absolute owner in possession of the portion allotted to him as per Ext.A3 compromise decree entered into between the parties in OS.No.613/2007 of the Sub Court, Ernakulam.
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made an attempt to trespass into the property and obstructed the plaintiff's power of attorney and his workers from doing work in the building. That will not confer him any right in the property. Any stray act of trespass made by the defendant in the property over which he has no right as per Ext.P3 compromise decree will not confer him any possession nevertheless joint possession as claimed by the counsel for the petitioner before this court. Further it is seen from Ext.A3 that the plaintiff is paying tax in respect of his portion. It is as evident from Exts.B1 to B3 that the present petitioner had filed OS.No.429/2015 before the Munsiff Court, Aluva against the brother-in-law of the plaintiff for injunction restraining from committing any act of waste in the plaint schedule property and interim injunction was granted. But later it was conceded by both the counsel before the court below that the order has been vacated. So under such circumstances, a person who is without any right over the property trying to interfere with the peaceful possession of another can only be restrained by approaching the court by an order of injunction. In this case, prima facie case, balance of convenience and irreparable injury are in favour of the respondent/plaintiff as he is the owner of the property by virtue to compromise decree and the defendant has no right over the same and in fact he had sold the property allotted to him as per Ext.A3 to a third party
O.P.(C).No.2864 of 2016
8
evidenced by Ext.A7 who is not entitled to contend that the property is still in joint possession of the plaintiff and the defendant and separate possession has not been obtained as per Ext.A3 compromise petition.
So under such circumstances, the courts below were perfectly justified in coming to the conclusion that the plaintiff has established a prima facie case to get an order of injunction restraining the petitioner who has no right over the property from trespassing into the plaint schedule property or obstructing the plaintiff or his authorized agent from doing any work in the plaint schedule property which was rightly confirmed by the appellate court and no illegality has been committed by the courts below in exercising the discretion in favour of the plaintiff which warrants interference at the hands of this court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. So the petition lacks merit and the same is hereby dismissed in limine.
Registry is directed to communicate a copy of this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl
2 issues framed by the court
Whether the High Court should interfere with the order of the appellate court granting an interim injunction restraining the appellant from trespassing onto the schedule property.
Whether the existence of joint possession after a compromise decree negates the respondent's prima facie case for an injunction.
Sebastian Alexis
Pylee Alexis
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
