JUDGMENT

The original petition is filed challenging Ext.P3 order passed in CMA No.13/2022 of the Court of the Subordinate Judge, Kattappana (Appellate Court).

2. The skeletal facts, relevant for the determination of the original petition are: the petitioners are the plaintiffs in the above suit, filed against the respondent for a decree of permanent prohibitory injunction and other consequential reliefs. They have contended that the first petitioner is paying the land tax in respect of plaint ‘A’ schedule property under the Thandaper No.3038 of Ayyappancovil Village, which is lying within the well defined boundaries. The plaint ‘B’ schedule property is an extent of 19 Ares and 52 square meters of patta land comprised in Survey No.378/7 of the same village. The second petitioner obtained title over the ‘B’

schedule property as per the patta issued by the Special Tahsildar. The plaint ‘A’ and ‘B’ schedule properties are in the possession and enjoyment of the petitioners. The respondent has certain properties situated near the plaint schedule properties. The properties were being looked after by the father of the first petitioner and a relative of the second petitioner. The first petitioner’s father had borrowed an amount of Rs.1,00,000/- from the respondent, who is a money lender, and had failed to repay the amount. The respondent got infuriated and threatened to trespass into the plaint schedule property and take forceful possession of the same. As the said acts were illegal and an infringement of the civil rights of the petitioners, they filed O.S. No.327/2021 before the Court of the Munsiff, Kattappana (Trial Court). Along with the suit, they filed I.A. No.1/2021, for an order of temporary injunction. The respondent resisted the application by filling a counter affidavit. He contended that the parents of the first petitioner had entered into an Otti agreement with him and his friend and leased out the plaint schedule property for cultivation. They paid an amount of rupees one lakh as consideration. The respondent and his friend are in possession and enjoyment of the plaint schedule property. The learned Munsiff, Kattappana, without considering the contentions in I.A. No.1/2021 in its proper perspective, by Ext.P2 order dismissed the application. The appellate court, by the impugned Ext.P3 order, has confirmed Ext.P2. Ext.P3 order is erroneous and wrong. Hence, the original petition.

3. Heard; Sri.Biju C Abraham, the learned the counsel appearing for the petitioners.

4. The point is whether there is any error or illegality in Ext.P3 order.

5. The specific case of the petitioners is that they are in possession of the plaint ‘A’ and ‘B’ schedule properties. The respondent, on the other hand, has contended that he and his friend are in possession of the plaint schedule properties on the basis of Otti agreement that has been executed by the parents of the first petitioner.

6. At the appellate stage, the petitioners raised a contention that they are protected by the provisions of the Kerala Scheduled Tribes (Restriction on Transfer of Land Restoration of Alienated Lands) Act, 1975 (in short the ‘Act’) and, therefore the Otti agreements are invalid. Undisputedly, there is no pleading in this regard in the affidavit in support of the application or the plaint.

7. The courts below have concurrently found that there is no pleading or material to substantiate the fact that the petitioners are in possession of the plaint schedule properties. On the contrary the respondent is prima facie found in possession of the property on the strength of the Otti agreement. Accordingly, the courts below arrived at a conclusion that the petitioners are not entitled for an order of temporary injunction.

On an analysis of the pleadings and materials on record, especially the findings rendered in Exts.P2 and P3 orders, and the conspicuous absence of an averment regarding the violation of the provisions of the Act, I confirm and endorse the conclusion arrived a