IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 FAO.No. 209 of 2008() --------------------- I.A.1049/2008 IN OS.12127/2008 of SUB COURT, TIRUR .................... APPELLANT(S): PETITIONER/PLAINTIFF -------------------------------------------------------- K.V. ZAKKIR HUSSAIN, KADAVIL VALAPPIL HOUSE, AYILAKKAD.P.O. EDAPPAL VILLAGE, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------- 1. THE STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE TAHSILDAR, PONNANI. BY GOVT. PLEADER SRI. R. LAKSHMI NARAYAN FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 209 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2009. JUDGMENT Raman, J, Appeal is against an order dismissing the temporary injunction application filed by the appellant. The appellant herein is the plaintiff. The suit is one for declaration that the plaintiff is in legal possession of the plaint schedule property and consequent relief of permanent prohibitory injunction against the defendants. Defendants are State of Kerala and another. The court below by the impugned order dismissed the application for temporary injunction. 2. The appellant contended before the court below that the petition schedule property belonged to the Government prior to 1948, which was occupied by one Narayana Panicker and started cultivation from then onwards and he had been in continuous possession and prescribed his title by adverse possession. On his death, property was assigned by his legal heirs to Marakkar, Fathima Umma and Cheriya Muhammed in 1981 and subsequently the petitioner purchased the same in 1988 as per registered documents, thus claims exclusive right, title and possession over the property. Proceedings FAO. 209/2008. 2 have been initiated by the Government under the Land Conservancy Act and apprehending that he will be evicted from the property, he filed the suit for declaration of his title. The respondent State contended that the petitioner has no right or title over the property, that the predecessors in interest were also not in possession, that the property had never been possessed or held by the petitioners or their predecessors with an animus to prescribe hostile title. 3. Exts.A1 to A7 were marked on the side of the petitioner and Exts. B1 to B11 were marked on the side of the respondents. Exts.C1 and C2 were also marked. 4. After referring to the records produced in the case, and repelling the contention of the petitioner based on adverse possession, injunction was refused. 5. Heard learned counsel for the appellant and the learned Government Pleader. 6. Exts. B9 to B11 judgments passed by this court will clearly show that the Government had initiated action under the Land Conservancy Act to recover possession of the property. Therefore, prima facie, the petitioner is in possession of the property. Whether he is entitled to hold on his property on his own right or on the basis of prescriptive title is the question. In Ext.B11 while setting aside the order passed by the District FAO. 209/2008. 3 Collector, this court had remitted the case to the District Collector for passing fresh orders. The District Collector has not passed any orders and that is pending. 7. In the aforesaid circumstances, we are of the opinion that the status quo as on today will be allowed to continue leaving open the right of the parties. This court had safeguarded the possession of the petitioner that only after two weeks of the communication of the order passed by the District Collector, if it is adverse to him, possession shall be taken. In such circumstances, there is no necessity to pass any order. In this background, the only order that is required to be passed at this stage is to maintain status quo subject to any orders that might be passed by the District Collector if not already passed or subject to the final decision in the suit, whichever is earlier. It would appear that some of the observations made in the order passed by the court below will virtually dispose of the very issue that may crop up in the suit. True that in some such cases, even to arrive at a prima facie finding it may be necessary to refer to the documents produced and therefore the observations so made can only be treated as one for the limited purpose of passing an order in the interim injunction application and that shall not however prejudice the mind of the court and untramelled by any such observation, the issue will be decided. However, we may not be FAO. 209/2008. 4 understood to have expressed any opinion regarding any of the issues that may arise in the suit including the maintainability of it. There will be a direction to the court below to dispose of the suit itself as expeditiously as possible at any rate within a period of four months from the date of receipt of a copy of this judgment. The appeal is disposed of as above. P.R. Raman, Judge P. Bhavadasan, Judge sb.