IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 FAO.No. 246 of 2007() --------------------- AGAINST THE ORDER DATED 20/07/2007 IN IA 3678/2007 IN OS.488/2007 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- SUDHA, D/O DAMODHARAN, W/O SADHEESAN, AGED 49 YEARS, RESIDING AT SREE VIHAR, X/983, EATCHAMUKKU, KAKKANAD, KAKKANADU VILLAGE. BY ADV. SRI.A.ANTONY RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. DAMODHARAN, S/O NANU, AGED 85 YEARS, VADACHIRA, KAKKANAD P.O., KAKKANAD KARA, KAKKANAD VILLAGE. 2. SURESH, S/O DAMODHARAN, AGED 46 YEARS, VADACHIRA, KAKKANAD P.O., KAKKANAD KARA, KAKKANAD VILLAGE. 3. SANTHOSHKUMAR, S/O DAMODHARAN, AGED 43 YEARS, VADACHIRA, KAKKANAD P.O., KAKKANAD KARA, KAKKANAD VILLAGE. 4. SATHEESHKUMAR, S/O DAMODHARAN, AGED 40 YEARS, VADACHIRA, KAKKANAD P.O., KAKKANAD KARA, KAKKANAD VILLAGE. 5. RAJESHKUMAR, S/O DAMODHARAN, AGED 37 YEARS, VADACHIRA, KAKKANAD P.O., KAKKANAD KARA, KAKKANAD VILLAGE. 6. RADHA, D/O DAMODHARAN, W/O RAMESHAN, AGED 44 YEARS, VADACHIRA, KAKKANAD P.O., KAKKANAD KARA, KAKKANAD VILLAGE. ADV. SRI.M.GOPIKRISHNAN NAMBIAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 246 OF 2007 -------------------------------------------------------- Dated 23rd July 2009 Judgment RAMAN, J. In a suit for partition and for setting aside a document of sale, the plaintiff sought for an order restraining the respondents herein from alienating, encumbering and committing waste in the plaint schedule property. The plaintiff and defendants 2 to 6 are the children of the first defendant. The property originally belonged to the father of the first defendant and after his death, his wife and children are said to have partitioned the property as per a partition deed and the plaint schedule property was allotted as A schedule property to the first defendant. Thus, according to the plaintiff, it is ancestoral property of the plaintiff and the defendants. Though a partition was sought for and notice was issued, they are not agreeable to it. Hence the suit. But the defendants contended that the parties are governed by the Marumakkathayam law and on the death of the father, the property will not devolve on the plaintiff FAO 246/07 2 and the defendants. Any way, the temporary injunction sought for was not granted. Though initially, ex parte injunction was granted, subsequently, it was vacated on contest, against which this appeal is filed. This court granted interim injunction until further orders. While so, the suit happened to be dismissed. The temporary injunction, if at all granted, was only till the disposal of the suit. As on today, there is no suit pending. If so, this appeal has become infructuous. If, on a future date, the suit happens to be restored, it will be open to the appellant to seek reliefs by filing a fresh petition and in that event, the observations made by the court below will not stand in the way of considering the said application on merits. Subject to the above observations, the appeal is dismissed as infructuous. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 246/07 3 FAO 246/07 4