Kerala High Court
Raghavan Nair vs The Asst.Executive Engineer on 22 February, 2016
Author: K.Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY,THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937
OP(C).No. 2588 of 2014 (O)
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CMA 42/2013 of ADDL. DISTRICT COURT, KOTTAYAM
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PETITIONER :
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RAGHAVAN NAIR, AGED 65 YEARS, S/O. PAPPIAMMA
RESIDING AT JYOTHIS HOUSE FROM PUTHYATHU HOUSE,
VATTUKULAM P.O., KANAKKARI VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT.
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SRI.C.DINESH
SMT.AMMU CHARLES
SRI.G.RENJITH
SRI.JINNU SARA GEORGE
RESPONDENTS :
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1. THE ASST.EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT,
ARUNAPURAM P.O.,PALA - 686 574.
2. THE ASST.ENGINEER,
PUBLIC WORKS DEPARTMENT,ERATTUPETTA
KOTTAYAM - 686 121.
ADDL. R3 IMPLEADED :
3. TEEKOY RUBBERS (INDIA) LIMITED KOTTAYA DISTRICT
REPRESENTED BY ITS MANAGER MR. VINOD MATHEW
ADDL. R3 IS IMPLEADED AS PER ORDER DT 14/7/2015 IN IA NO. 8468/15.
R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI. C.K. SYAMKUMAR
BY SENIOR GOVERNMENT PLEADER SRI CYRIAC KURIAN
BY ADV. SRI.V.ABRAHAM MARKOS
BY ADV. SRI.BINU MATHEW
BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL)
BY ADV. SRI.ABRAHAM JOSEPH MARKOS
BY ADV. SRI.NOBY THOMAS CYRIAC
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
OP(C).No. 2588 of 2014 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1:- TRUE COPY OF THE JUDGMENT DT. 11.08.08 IN WPC NO. 18876/2008.
P2: - TRUE COPY OF GO(RT) NO. 1540/2011/PWD DT. 16.2.12.
P3: - TRUE COPY OF OS NO. 111/2013 ON THE FILE OF THE SUB COURT, PALA.
P3(A): - TRUE COPY OF IA NO. 790/13 IN OS NO. 111/13 ON THE FILE OF THE SUB
COURT, PALA.
P4:- TRUE COPY OF THE OBJECTION FILED IN THE ABOVE I.A.
P5: - TRUE COPY OF THE ORDER DT. 06.7.13 IN IA NO. 790/13 IN OS NO. 111/13 ON
THE FILE OF THE SUB COURT, PALA.
P6: - TRUE COPY OF CMA NO. 42/2013 ON THE FILE OF THE ADDITIONAL DISTRICT
JUDGE, KOTTAYAM.
P7: - TRUE COPY OF JUDGMENT DT. 10.10.14 IN CMA NO. 42/13 ON THE FILE OF
THE ADDITIONAL DISTRICT COURT, KOTTAYAM.
P8:- COPY OF COMMISSION REPORT SUBMITTED BY THE ADVCATE -
COMMISSIONER IN OS NO. 17 OF 2006 ON THE FILE OF THE SUB COURT,
PALA
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
K.ABRAHAM MATHEW, J.
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O.P.(C) No.2588 of 2014
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Dated this the 22ndday of February, 2016
JUDGMENT
The second plaintiff is the petitioner and defendants 2 and 3 the respondents 1 and 2 and additional 3rd respondent is the 4th defendant in in O.S.No.111 of 2013 of Sub Court, Pala. In 1907 predecessors of the petitioner and the co-plaintiffs leased out the plaint schedule property which has an extent about 1872 acres to Teekoy Rubber Estate Limited which was a British Company, who leased out to the additional 3rd respondent company in 1944. The grand father of the 1st plaintiff and father of the 3rd plaintiff obtained patta to the property. Though the period of lease expired, additional 3rd respondent has not surrendered the possession of the property. The petitioner and others filed O.S.No.117 of 2006 for recovery of its possession. An interlocutory application filed by them for a prohibitory injunction was refused. They filed Writ Petition No.18876 of 2008 in which this court has passed an order of status quo. Still the 3rd respondent transferred possession of some area to strangers. The respondents and the 1st defendant State of Kerala proposed to construct a new road, the major portion of which passes through the plaint schedule property and also to construct a O.P.(C) No.2588 of 2014 2 bridge across the Meenachil river and to widen the existing road. The 3rd respondent filed I.A.No.15713 of 2012 in this court for permission to surrender property for the proposed road. It was a collusive proceedings. This court dismissed it. The 3rd respondent committed mischief in the property. The 1st defendant State of Kerala and respondents 1 and 2 published a notice inviting tender for construction of road and bridge and later issued a work order. On these allegations the petitioner and the co-plaintiffs prayed for a perpetual injunction prohibiting the respondents and others from constructing the road and the bridge and widening the existing road and committing any mischief in the plaint schedule property. The petitioner filed I.A.No.790 of 2013 for a temporary prohibitory injunction restraining respondents 1 and 2 from doing the above acts. The contention of the defendants was that the road and the bridge are constructed in puramoke land and that the suit is bad for non jointer of necessary parties. The trial court observed that the 3rd respondent was not made a party to the interlocutory application. It took notice of the fact that this court restrained the 3rd respondent only from transferring possession of the property to any one except the State and this court allowed the 3rd respondent to surrender property to the State. So it dismissed the interlocutory application. In C.M.A the District Judge observed that the pleadings of the petitioner O.P.(C) No.2588 of 2014 3 does not disclose that he has any interest in the property and that in the order in which this court issued direction to maintain status quo respondents 1 and 2 were not parties. It also took the view that the petitioner could have impleaded respondents 1 and 2 in O.S.No.117 of 2006 to claim the relief prayed in the present suit. The learned District Judge has expressed the view that the order of injunction if granted will affect the 3rd respondent, who was not a party to the interlocutory application. The learned District Judge dismissed the appeal. This is challenged.
2. Heard.
3. Though there are four plaintiffs only the 2nd petitioner filed the interlocutory application for temporary injunction. I have perused the plaint and the affidavit filed in support of the interlocutory application. There is a bald statement that the plaint schedule property belonged to the predecessors of the plaintiffs. The only specific averment is that the grand father of the 1st plaintiff and the father of the 3rd plaintiff obtained patta of the plaint schedule property. The plaint and the affidavit do not disclose how the petitioner is related to the original owners of the property. The relationship between the petitioner and grand father of the 1st plaintiff and father of the 3rd plaintiff also is not revealed. Thus there is nothing to show that the petitioner has any interest in the plaint O.P.(C) No.2588 of 2014 4 schedule property. Though in Writ Petition No.18876 of 2008 this court ordered the parties to maintain status quo, in I.A.No.15713 of 2012 filed by the 3rd respondent this court only restrained it from prohibiting possession to anyone other than the 1st defendant State of Kerala, whose officers are respondents 1 and 2 in this original petition. This court specifically permitted the 3rd respondent to surrender possession to the State.
4. In O.S.No.117 of 2006 the State of Kerala is a party. Prima facie, it was unnecessary for the petitioner to file this suit against respondents 1 and 2 who are only its officers. The learned District Judge correctly observed that if order of injunction is granted it will affect the right of the 3rd respondent who is not a party to the proceedings. I have no doubt that the courts below rightly held that the petitioner is not entitled to the order of injunction. No interference is called for.
In the result, this O.P is dismissed.
K.ABRAHAM MATHEW JUDGE pm