Pradeep Kumar.R vs. Prathibha - Kerala High Court, 21 May 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUE AY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941 OP(C).No. 1328 of 2019 AGAINST THE ORDER/JUDGMENT IN CMA 27/2018 of ADDITIONAL DISTRICT COURT - VI, KOLLAM AGAINST THE ORDER/JUDGMENT IN OS 908/2017 of PRINCIPAL MUNSIFF COURT, KOLLAM PETITIONER: PRADEEP KUMAR.R AGED 52 YEARS S/O. LATE REGHUNATHAN, 5/321, PRATHIBHA BHAVAN, SREEKRISHNA NAGAR 140, ASRAMOM P.O, KOLLAM-PIN-691002. BY ADV. SRI.J.ASOKAN(KONEZHATH) RESPONDENTS: 1 PRATHIBHA AGED 50 YEARS, D/O. RAJAMMA, RESIDING AT KARTHIKA, AKG NAGAR, SECOND LINE, HOUSE NO.215, PEROORKADA, THIRUVANANTHAPURAM, PIN-695005. 2 ADARSH, AGED 30 YEARS, S/O. PRATHIBHA, RESIDING AT KARTHIKA, AKG NAGAR, SECOND LINE, HOUSE NO.215, PEROORKADA, THIRUVANANTHAPURAM, PIN-695005. BY ADVS. SRI.J.HARIKUMAR SRI.M.AYYOOBUKHAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O.P(C).1328/19 2 JUDGMENT Petitioner is the plaintiff in O.S.No.908 of 2017 of the Principal Munsiff Court, Kollam. He claimed that, he is residing in the plaint schedule building. Suit was one for permanent prohibitory injunction restraining the defendants, his sister and her son from trespassing into the plaint schedule property and interfering in the peaceful possession and enjoyment of the plaint schedule building of the plaintiff. Other ancillary reliefs were also sought. Along with the suit, he sought for a permanent prohibitory injunction as against the first respondent. She appeared and filed detailed counter traversing the various allegations. Learned Munsiff, after an elaborate discussion of the rights devolved on the parties, by his order, dismissed the application. This was carried in appeal before the Additional District Court, Kollam in C.M.A.No.27 of 2018. The appeal was also dismissed. Hence the original petition. Heard the learned counsel for the petitioner and learned counsel for the contesting first respondent.

Admittedly, the property which includes the house and the land belonged to the father of the plaintiff and the first defendant. It emerges that, the mother of the plaintiff and another sister by name Prasantha are also residing in that house. First defendant is residing

O.P(C).1328/19 3 elsewhere. It seems that, father had executed the Will, by which, he bequeathed his properties including the plaint schedule properties. Various rights were created by virtue of the above Will. It emerges that, by virtue of the above Will, absolute right was created in favour of Prasantha who had an ultimate right to decide as to the persons who can gain entry to the house. It seems that, only after the demise of the right in favour of the Prasantha alone the property would devolve on the plaintiff. The mother had a life interest over the property. It seems that the first defendant did not claim any right over the property. However, her assertions seems to be that, she can enter the house as long as Prasantha, the owner in possession of the property decide.

On an evaluation of the entire facts, what emerges is that, Prasantha is at present having right over the property. Her desire, regarding the person who should enter the house should prevail. Neither Prasantha nor the mother are made party to the proceeding. Court below have considered in detail the various recitals in the Will and concluded that the plaintiff is not entitled for any relief as sought by him. I do not find any illegality in the evaluation of the facts and the application of law made by the court below, ultimately resulting in the dismissal of the suit. Having considered this, I find that, there is no merit in the original petition and there is no scope for an interference in the concurrent

O.P(C).1328/19 4 findings of fact entered into by the court below in exercise of the juri iction under Article 227 of the Constitution of India. Original petition fails and is dismissed. SUNIL THOMAS Sbna JUDGE

O.P(C).1328/19 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF O.S.NO.908/2017 FILED IN THE HONOURABLE MUNSIFF COURT, KOLLAM EXHIBIT P2 AOF IA NO.5800/2017 INJUNCTION APPLICATION FILED IN THE HON'BLE MUNSIFF COURT, KOLLAM. EXHIBIT P3 AOF OBJECTION FILED IN THE TRIAL COURT BY THE RESPONDENTS AGAINST EX-PARTE INJUNCTION ORDER. EXHIBIT P4 AOF THE WILL NO.161/III/2017 DATED 30.12.2015 EXECUTED BY REGHUNATHAN, THE FATHER. EXHIBIT P5 AOF ORDER DATED 21.03.2018 DISMISSING EXT.P2-INJUNCTION APPLICATION. EXHIBIT P6 AOF CMA NO.27/2018 FILED IN THE DISTRICT COURT(APPELLATE COURT, KOLLAM AGAINST EXT P5 ORDER. EXHIBIT P7 AOF OBJECTION FILED BY THE RESPONDENTS IN THE DISTRICT COURT, KOLLAM AGAINST EXT P6-CMA. EXHIBIT P8 AOF ORDER DATED 27.03.2019 DISMISSING EXT.P6-CMA BY THE APPELLATE COURT, KOLLAM. EXHIBIT P9 AOF JUDGMENT DATED 27.02.2019 OF THIS HON'BLE COURT IN WPC NO.5904/2019 AGAINST EXT P6 TAX RECEIPT, THE IMPUGNED MUTATION FAVOURING MS PRASANTHA.

O.P(C).1328/19 6 EXHIBIT P10 AOF LETTER SENT TO MRS RAJAMMA, THE MOTHER BY 1ST RESPONDENT FROM THIRUVANANTHAPURAM AGAINST CCTV CAMERA OF PETITIONER INT HE PROPERTY. EXHIBIT P11 AOF SHOW-CAUSE SERVED ON PETITIONER BY STATE GST AUTHORITY ON 17.01.2019 (17.01.2018 TYPING ERROR) AGAINST HIS BUSINESS ON THE FRIVOLOUS COMPLAINT OF RESPONDENTS. EXHIBIT P12 AOF LAWYER NOTICE DATED 28.02.2019 SENT TO MS PRASANTHA AND MRS RAJAMMA AGAINST THEIR DOMESTIC VIOLENCE AGAINST

MRS

SETHUKUMARI,

WIFE

OF PETITIONER. EXHIBIT P13 AOF TAX RECEIPT DATED 10.11.2017 ISSUED TO MS PRASANTHA REGARDING IMPUGNED MUTATION IN HER FAVOUR. EXHIBIT P14 AOF SUPREME COURT DECISION REPORTED IN 2019(1) KLJ 662-BHIMABAI MAHADEO KAMBEKAR DEAD THROUGH LRS V ARTHUR IMPORT AND EXPORT COMPANY & ORS.C.A.NO.1130 OF 2019 DECIDED ON 31.01.2019.