BY AD v. P.CHANDY JOSEPH

The defendants in O.S.No.54/2021 of the Munsiff Court, Thodupuzha, who are the appellants in C.M.A. No.30/2021 of the District Court, Thodupuzha are the petitioners herein. They are aggrieved by Ext.P9 order, as also, Ext.P11 order of the learned District Judge, the former, dismissing the C.M.A. and the latter, dismissing a review sought for to Ext.P9 order.

2. Heard the learned counsel for the petitioners and the respondents.

3. Learned counsel for the petitioners invited the attention of this Court to the memorandum of appeal in the C.M.A. to point out that a ground under Section 74 of the Kerala Land Reforms Act (hereinafter referred as 'the Act', for short), was specifically canvassed, which, however, is not seen OP(C) No.2766 of 2023 - 4 - addressed in the impugned Ext.P9 order. More importantly, learned counsel submitted that Ext.P7 compromise has been arrived at by and between the legal heirs of the 4th plaintiff, who passed away pending the Civil Miscellaneous Appeal, but the impact of such compromise was not considered at all. As per Ext.P7 compromise, the right of the 4th plaintiff - who had title to 10 acres of land, out of the 40 acres - was surrendered in favour of the petitioner herein. Ext.P7 was produced in the C.M.A. However, the same was not considered while passing Ext.P9 order. In such circumstances, Ext.P10 review application was filed to limit the injunction to the properties not covered by Ext.P7 compromise agreement. However, Ext.P10 review application was also dismissed vide Ext.P11, referring only to the contours of Order 47, Rule 1.

4. Per contra, the reliefs sought for in the Original Petition were opposed by the learned OP(C) No.2766 of 2023 - 5 - counsel for the respondents. Learned counsel pointed out that the validity of the compromise itself, is in question. At any rate, the entire 40 acres is lying contiguously, as a compact plot and the so called 10 acres of the 4th plaintiff is not lying separate and identifiable, so as to limit the injunction granted. Learned counsel for the respondents would however agree that the contention with respect to Section 74 of the Act, though raised, was not answered, either in Ext.P9 or in Ext.P11 order.

5. Having heard the learned counsel appearing for the respective parties, this Court is of the view that Exts.P9 and P11 orders cannot be sustained. Ext.P9 order is not sustainable for the reason that Ext.P7 compromise, which has been produced before the C.M.A court, has not been considered at all and also for reason of not having considered the contention under Section 74 of the Act. Ext.P11 OP(C) No.2766 of 2023 - 6 - order cannot be sustained for the reason that, despite pointing out the fact that Ext.P7 compromise has been produced and urged in the C.M.A and that the same has not been considered in Ext.P9 order, the learned District Judge chose to dismiss Ext.P10 Review Petition.

6. This Court is of the view that the matter requires reconsideration at the hands of the learned District Judge. Ext.P7 compromise is liable to be taken stock of prima facie, though the challenge to its validity will be a matter to be decided in the suit, after the parties incorporate necessary pleadings and joining issue on that. The question as to whether the 10 acres of land covered by Ext.P7 compromise is lying separate, distinct and identifiable from the rest of the property shall be addressed by the learned District Judge in accord with the records and other materials produced by the parties; and if the same is identifiable, the prayer OP(C) No.2766 of 2023 - 7 - of the petitioners herein to limit the injunction to the rest of the properties may be considered. If the same is not identifiable and the property is remaining as a single compact plot of 40 acres, then the question of retaining the injunction as such, may also have to be addressed. The learned District Judge will also take a prima facie call on the contention based on Section 74 of the Act, only for the limited purpose of adjudicating the question as to whether the interim injunction granted has to be sustained or not. With the aforesaid observations, this Original Petition will stand disposed of. Sd/- C.JAYACHANDRAN, JUDGE OP(C) No.2766 of 2023 - 8 - APPENDIX OF OP(C) 2766/2023 PETITIONERS' EXHIBITS: EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 EXHIBIT P9 TRUE PHOTOCOPY OF THE LEASE DEED NO. 1163/2015 EXECUTED BY THOMAS J VAYALAT IN FAVOUR OF RESPONDENTS 1 TO 3 DATED 01.07.2015. TRUE PHOTOCOPY OF THE LEASE DEED NO. 1162/15 EXECUTED BY THOMAS J.VAYALAT IN FAVOUR OF REGIMON AND P.B AJEESH. TRUE PHOTOCOPY OF THE UNREGISTERED AGREEMENT DATED 03.07.2015 ATTESTED BY A NOTARY PUBLIC IN NEDUMKANDAM. TRUE PHOTOCOPY THE CHEQUE IS DATED 10-01- 2018 OF STATE BANK OF TRAVANCORE IN FAVOUR OF THE 3RD PETITIONER. TRUE PHOTOCOPY OF THE ORDER DATED 16.09.2021 IN I.A 1/2021 IN OS NO.54/2021 OF THE MUNSIFF'S COURT, DEVIKULAM. TRUE PHOTOCOPY OF THE PLAINT IN O.S 54/21 FILED BY THE 1ST RESPONDENT AGAINST THE 1ST PETITIONER BEFORE MUNSIFF COURT, DEVIKULAM. THE TRUE PHOTOCOPY OF THE COMPROMISE PETITION I.A NO.4/21 IN CMA NO.30/2021 FILED BY THE 1ST PETITIONER AND 1ST RESPONDENT BEFORE THE DISTRICT COURT, THODUPUZHA DATED 06.12.2021. TRUE PHOTOCOPY OF THE REGISTERED RELEASE DEED DATED 19.04.2022 EXECUTED BY THE 1ST PETITIONER IN FAVOUR OF RESPONDENTS 5, 6 & 7. TRUE PHOTOCOPY OF THE JUDGMENT IN C.M.A 30/21 DATED 23-12-2022 IS OF DISTRICT COURT, THODUPUZHA. OP(C) No.2766 of 2023 - 9 - EXHIBIT P10 EXHIBIT P11 TRUE PHOTOCOPY OF THE REVIEW PETITION IA 7/23 FILED BY THE 1ST PETITIONER & OTHERS BEFORE THE DISTRICT COURT, THODUPUZHA. THE TRUE PHOTOCOPY OF THE ORDER DATED 19.10.2023 IN I.A NO.7/2023 IN C.M.A NO.30/2023 OF THE DISTRICT COURT, THODUPUZHA.