IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 FAO.No. 129 of 2008() --------------------- AGAINST THE ORDER DATED 22/05/2008 IN IA.1435/2008 IN OS.182/2008 of II ADDL.SUB COURT,ERNAKULAM .................... : APPELLANT/PLAINTIFF ------------------------------------ P.S.MOHANDAS, AGED 48 YEARS, S/O.SUBRAMANIAN, "PERINCHERIL HOUSE", NEYTHELIL HOUSE, KAKKANAD P.O.-682 030. BY ADV. SRI.V.B.UNNIRAJ RESPONDENTS: DEFENDANTS ----------------------- 1. SMT.THANKAM, AGED 72 YEARS, W/O.LATE SUBRAMANIAN, RESIDING AT PERINCHERIL HOUSE, POYYACHIRAMUKAL, CSEZ P.O., KAKKANAD-682 037. 2. P.S.DEVADAS, AGED 50 YEARS, S/O.LATE SUBRAMANIAN, RESIDING AT "SABARI", MUKAL, CSEZ P.O., KAKKANAD-682 037. 3. P.S.KAVITHA, AGED 46 YEARS, D/O.LATE SUBRAMANIAN, RESIDING AT CHAKKALAKAL HOUSE, MAHATMA NAGAR, CHOTTANIKKARA. 4. P.S.SHAJI, AGED 43 YEARS, S/O.LATE SUBRAMANIAN, RESIDING AT PERINCHERIL HOUSE, RAILWAY STATION ROAD, PULLUR P.O., IRINJALAKKUDA. 5. P.S.BABURAJ, AGED 41 YEARS, S/O.LATE SUBRAMANIAN, RESIDING AT PERINCHERIL HOUSE, POYYACHIRAMUKAL, CSEZ P.O., KAKKANAD-682 037. 6. PREETHY.G., W/O.BABURAJ, AGED 36 YEARS, RESIDING AT PERINCHERIL HOUSE, POYYACHIRAMUKAL, CSEZ P.O., KAKKANAD-682 037. BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.129 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of May, 2008. JUDGMENT Raman, J. The plaintiff is the appellant and the petitioner in I.A.No.1435/2008. The suit is one for partition and the present petition was filed for interim injunction restraining the respondents and their men from altering the nature and character of the plaint schedule properties or to commit any acts of waste therein pending disposal of the suit. It is the allegation of the plaintiff that during the lifetime of the father of the plaintiff, it was decided to partition the properties among the plaintiff and defendants 1 to 5 and a sketch was also prepared, but no actual partition took place. In the meantime, the defendants took steps to alienate the properties contrary to the decision taken. Hence, this petition. 2. The first respondent filed objection denying the allegations. It was also contended that late Subramanian, the husband of the first respondent was not in possession and enjoyment of the property as its owner till 10.1.2003 and late Subramanian had also executed various documents and parted with the property during his lifetime. There was a settlement deed in FAO 129/2008 -2- the year 2000. 2.23 acres of property was given to the 5th respondent. Since the petitioner was facing financial difficulties, he had given money in lieu of his due share of the property. The second respondent also filed objection. Respondents 3 and 4 have filed joint objection raising similar contentions. The court below found that even according to the petitioner, various documents were executed by late Subramanian, the father of the plaintiff, in favour of defendants 2 to 5. The petitioner alone has been left out and these documents were executed in the year 2000. In the light of those documents, primafacie there is no evidence to show that the father of the plaintiff had any property at the time of his death. Based on the primafacie opinion formed by the court, injunction was refused. Aggrieved thereby, this appeal is preferred. 3. We heard learned counsel for the appellant. The finding of the court below is based on the documents already produced in the case. There is no acceptable evidence as of now to alter the primafacie opinion reached by the court. However, the suit is still pending. Therefore, it is open to the parties to adduce further evidence in support of their contentions and a final decision will be rendered in the suit after trial. The court below having considered the primafacie case and found against and in the view we are taking, it is not possible to interfere with the said finding. However, we FAO 129/2008 -3- make it clear that whatever findings rendered by the court below in the impugned order is only for the limited purpose of disposal of the interlocutory application and untrammelled by any such observations, the suit will be decided. Subject to the above observations, the appeal is disposed of. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/