IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 FAO.No. 181 of 2011() --------------------- AS.102/2009 of SUB COURT,KOTTARAKKARA .................... APPELLANTS/COUNTER PETITIONERS/APPELLANTS ------------------------------------------------------------- 1. RADHAMANIYAMMA, OZHIYIL PUNAYIL PUTHEN VEEDU, VALAKOM VILLAGE. 2. NEELAKANDA PILLAI, OZHIYIL PUNAYIL PUTHEN VEEDU, VALAKOM VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE RESPONDENT(S): PETITIONERS/RESPONDENTS -------------------------------------- 1. RAMACHANDRAN PILLAI, DILEEP BHAVAN, NEDUVATHOOR, PIN-691 506. 2. SREEKUMAR, S/O. RAMACHANDRAN PILLAI, DILEEP BHAVAN, NEDUVATHOOR, PIN-691 506. 3. RAMESH KUMAR, S/O. RAMACHANDRAN PILLAI, DILEEP BHAVAN, NEDUVATHOOR, PIN-691 506. ADV. SRI.B.MOHANLAL FOR R1-3 SRI.SAIJU S. FOR R1-3 SRI.T.PRASAD FOR R1-3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- F.A.O. No.181 of 2011 ------------------------------------- Dated this the 2nd day of September 2011 Judgment Aggrieved by the order dated 12.04.2011 on IA No.1913/10 in AS No.102/09, the counter petitioners before the court below have come up in appeal. The short facts necessary for the disposal of the case are as follows : 2. It appears that the appellant before this court suffered a decree at the hands of the Munsiff's Court, Kottarakkara for declaration of title and possession and various other reliefs. It seems that the plaintiffs before the trial court obtained a property from one Azhakesan as per Ext.A1 dated 10.04.2006. On the basis of that document, they laid the suit against the defendants for the reliefs already mentioned. 3. The defendants resisted the suit pointing out that Azhakesan had no vested interest in the property and the document in favour of the plaintiffs in the suit did not F.A.O.181/11 2 confer any title on them. The trial court found in favour of the plaintiffs and granted a decree in their favour. That made the defendants carry the matter in appeal before the Sub Court, Kottarakkara as AS No.102/09. It appears that the respondents in the appeal moved the above interlocutory application for restraining the respondents in that petition from tapping rubber trees standing in the decree schedule property till the final disposal of the appeal. The court below found that there was some grievance for the petitioners and passed an order which reads as follows : “In the result, IA is allowed. Respondents are restrained from causing any obstruction to the petitioners in tapping the rubber trees in the decree schedule property until the disposal of this appeal. But, it is clarified that if the petitioners ultimately fail in the appeal they will have to refund the income which they take from the decree schedule properties to the respondents. Injunction order will come into effect only if petitioners file affidavit agreeing to the condition imposed by the court.” F.A.O.181/11 3 It is the above order that is assailed before this court. 4. The main contention raised by the learned counsel for the appellant is that the property that is the subject matter of assignment is only 11 Ares whereas the commissioner, on measurement has found that the extent of property is over 17 Ares. It is also pointed out that the property which is conveyed as per Ext.A1 which is in turn conveyed to the plaintiffs in the suit has not been identified by the commissioner and therefore, a decree could not have been granted in favour of the plaintiffs. It is also pointed out by the learned counsel, that the appellants, before this court, are residing in a portion of the property and the present order is unworkable and acts to their detriment. 5. The learned counsel for the respondents, on the other hand, pointed out that the plaintiffs in the suit have confined their rights to 11 Ares and in the light of the decree passed in their favour, it is only proper for them to tap the rubber trees. According to the learned counsel, the F.A.O.181/11 4 order passed by the lower court does not call for any interference. 6. One cannot go into the merits of the appeal in these proceedings. As regards the extent of property that is conveyed etc, are all matters to be decided in the appeal on merits. Whatever that be, the fact remains that there is a decree in favour of the plaintiffs which entitles them to recover possession from the defendants. All that the court below has done is to permit the petitioners before the said court to tap rubber trees and make them liable for the income which they derive and that the same will have to be paid over to the respondents before the said court in case they win the appeal. Probably, there is some grievance in that regard. However, the interests of both the parties can be safeguarded by directing the petitioners before the court below that they will act as the receivers of the property and they will account and deposit the income derived by them from the property. Any disbursements from the said account will be under the orders of the said court. The F.A.O.181/11 5 lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible. P.Bhavadasan, Judge sta F.A.O.181/11 6