PAUL ALIAS VARKEY Vs. NARAYANAN

JUDGEMENT

(1.) The petitioner herein is the plaintiff in O. S. No. 501 of 1971 on the file of the Munsiff's Court, Cochin. The suit is for a permanent injunction restraining the defendants from interfering with the plaintiff's right to make use of the plaint schedule property for purposes of construction of buildings for industrial and residential purposes of the plaintiff after separately demarcating ten cents of land immediately surrounding the kudikidappu of the defendants on which portion of the property the plaintiff does not want to put up any construction or interfere with whatever rights the defendants may have under the provisions of the Kerala Land Reforms Act, 1963 (Act I of 1964). Pending the said suit the plaintiff moved the Trial Court for the grant of a temporary injunction restraining the defendants from obstructing the plaintiff in demarcating the ten cents of land by putting up fence separating the said portion from the rest of the property and using the remaining portion of the property for building purposes of the plaintiff. The Trial Court after hearing both sides and after bestowing careful consideration on all the relevant aspects allowed the plaintiff's prayer for the grant of a temporary injunction. From the said order the defendants preferred an appeal before the Subordinate Judge, Cochin. That appeal was disposed of by the Subordinate Judge under his judgment dated the 28th July, 1972, whereby he dissolved the order of interim injunction passed by the Trial Court. The plaintiff has come up with this revision petition challenging the legality and correctness of the decision so rendered by the lower appellate court.

(2.) The plaintiff had instituted an earlier suit O. S. No. 349 of 1959 in the Munsiff's Court, Cochin praying for the grant of a permanent injunction restraining the same defendants from using any portion of the plaint schedule property beyond a radial distance of five koles from the kudikidappu building occupied by the defendants. That suit was decreed by the Trial Court and the said decree was also confirmed on appeal. In the order now under revision one of the main grounds stated by the Subordinate Judge for dismissing the plaintiff's application for temporary injunction is that the present suit instituted by the plaintiff is not maintainable in law in view of the earlier decree already obtained by him against the defendants in O. S. No. 349 of 1959 and the plaintiff's remedy is only to resort to proceedings in execution of the said decree under O.21 R.32 of the Civil Procedure Code. Another ground mentioned by the Subordinate Judge is that even if it is to be assumed that the suit is maintainable, the question involved in the suit has to be referred to the Land Tribunal as per S.125(3) of Act 1 of 1964, since the defendants are kudikidappukars, and that the civil court has no power to grant any injunction against a kudikidappukaran. The defendants have put forward a contention that they have a right to make use of a latrine and urinal which are now existing in the portion of the plaintiff's land in respect of which the relief of temporary injunction has been prayed for by the plaintiff, in view of S.79A of the Land Reforms Act which lays down that a kudikidappukaran is entitled to all rights accrued to him by custom, usage or agreement and which he was enjoying immediately before the commencement of the Act. Adverting to this plea raised by the defendants the learned Subordinate Judge has observed in his judgment that the said question can be considered only after evidence is adduced and since the latrine and urinal are now found in the property the status quo has to be maintained till the disposal of the suit. It is in the light of the above reasoning that the Subordinate Judge has proceeded to hold that the "plaintiff has no prima facie case for the issue of an injunction."

(3.) I am constrained to observe that there is no substance in any of the aforesaid grounds stated by the Subordinate Judge. If only the learned Sub Judge had taken trouble to look into the papers before him and find out the scope of earlier suit O. S. No. 349 of 1959 and the grounds stated by the plaintiff as to why he has been compelled to institute the present suit, namely that subsequent to the decree in the prior suit, the defendants had expanded the plinth area of the kudikidappu and had also started interfering with the plaintiff's right to make use of the remaining portion of his property for purposes of construction of buildings for his own industrial and residential use, there should have been no difficulty for the Subordinate Judge to realise that a fresh cause or action has clearly arisen in favour of the plaintiff warranting the institution of the present suit. The relief claimed in the present suit cannot be secured by the plaintiff by his resorting to proceedings against the defendants under O.21 R.32, CPC. in enforcement of the earlier decree passed in O. S. No. 349 of 1959. The first ground stated by the Subordinate Judge that the present suit is not maintainable is, therefore, manifestly erroneous and unsustainable.