MABLE Vs. NELSON MENDEZ

JUDGEMENT

(1.) Petitioner is the defendant in a suit pending before the Additional Sub Court, Ernakulam. Suit filed by the respondent is for injunction, both prohibitory and mandatory. Ext. P1 is copy of the plaint in the suit. Allegations raised in the plaint spell out that the defendant's mother, on permission given, had put up a house in the plaint schedule property which belonged to the father of the plaintiff, and, during his life time. Now the defendant is in occupation of that house and site having an extent of 2 cents forming part of the plaint property. He has illegally constructed a shed close to that house and that has not been demolished even after demand, is the case of the plaintiff to seek decree of prohibitory and mandatory injunction. Resisting the suit claim the defendant, among other contentions raised a plea that he is a cultivating tenant over the plaint property, and, thus, entitled to fixity of tenure. Since an issue over fixity of tenure canvassed by him was not raised by the court he moved an application for raising such issue. That was turned down by the learned Munsiff passing Ext. P5 order. Correctness and legality of Ext. P5 order is challenged in this Original Petition invoking the visitorial jurisdiction of this court.

(2.) Going through Ext. P5 order it is seen that learned Munsiff has turned down the application of the defendant for framing an additional issue holding that the only issue to be decided is the entitlement of plaintiff to get the reliefs claimed in the suit. Occupation of the defendant in continuance of his mother, who is stated to have put up a building in a portion of the plaint property, is admitted by plaintiff. Suit is one for mandatory injunction also, to direct the defendant to surrender vacant possession of plaint schedule property after demolishing the structures put up in that property. When such be the case, the question whether the plaintiff has got subsisting title which is disputed by the defendant, no doubt, would arise for consideration for adjudication to have a fair disposal of the suit. Suit has been framed as one for injunction alone is not the criteria to examine whether question of title is involved. That question, no doubt, has to be examined with reference to the allegations raised in the plaint and also the contentions put forth by the defendant to resist the suit claim. Of course, resistance to the suit claim of mandatory injunction by defendant setting forth a tenancy right, if it is prima facie found to be baseless, the question of title will not arise for consideration. However, where construction of a building in a portion of plaint property by mother of defendant years before, and occupation of that building by defendant is conceded, and a mandatory injunction is claimed to evict him, the question whether plaintiff has subsisting title with reference to claim of tenancy may assume significance. In a suit for injunction even if it is for mandatory injunction tenancy canvassed by defendant, to resist suit claims does not arise for consideration, for reference to land Tribunal. However if question of title of plaintiff arise for adjudication in such suit, the court has to consider whether framing such an issue would suffice or the plaintiff is to be directed to seek for declaration of his title, over the property and if the latter course is followed then framing an issue on tenancy canvassed by defendant may become relevant.