IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 FAO.No. 357 of 2007() --------------------- AGAINST THE ORDER DATED 19/10/2007 IN IA 1235/2007 IN OS.107/2007 of SUB COURT, KOTTARAKKARA .................... APPELLANTS/PETITIONERS/PLAINTIFFS: -------------------------------------------------------- 1. ABRAHAM, AGED 48 YEARS, S/O.GEORGE, RESIDING AT VAZHAVILA, ELIKKATTOOR, PIRAVANTHOOR VILLAGE. 2. LIZY ABRAHAM, AGED 42 YEARS, W/O.ABRAHAM GEORGE, RESIDING AT VAZHAVILA, ELIKKATTOOR, PIRAVANTHOOR VILLAGE. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D. NAIR SRI.K.JOHN MATHAI RESPONDENT(S): CR.PETITIONER/DEFENDANTS: ------------------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KOLLAM. 2. TAHSILDAR, PATHANAPURAM TALUK, PUNALUR. BY GOVT. PLEADER SRI. R. LAKSHMI NARAYAN. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 357 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2009. JUDGMENT Raman, J, This is an appeal arising out of the order declining to grant temporary injunction as sought for by the plaintiff-appellant in I.A. 1235 of 2007 in O.S. 107 of 2007 on the file of the Subordinate Judge's Court, Kottarakkara. Suit is one for declaration of title and consequential injunction. He also sought for a temporary injunction not to evict the petitioners from the property till the disposal of the suit. The court below by an elaborate order considered the same, however found no merit and accordingly the same was dismissed by the impugned order. 2. The stand of the defendant was that the very petition is infructuous since they were already evicted from the plaint schedule property and the Government had already taken possession of the same. This is supported by the finding of the Commissioner appointed. It is also found that no tapping of rubber trees was made in the plaint schedule property for the last two FAO. 357/2007. 2 months. Therefore it was inferred that the Government had already taken possession of the property. 3. Whether or not a temporary injunction should be granted would depend mainly on two questions, one, prima facie case and two, balance of convenience. The factual position as on the date of the suit is relevant in considering whether injunction should be granted or not. Possession has to be established on evidence. On the factual situation, when the court below found that the appellant is not in possession of the property and the suit itself is based on adverse possession, the court below cannot be found fault with for not granting the injunction as sought for. While admitting the appeal, we have directed the parties to maintain status quo as on the date of the passing of the order by this court. Therefore, the question as to whether the appellant or the respondent is actually in possession of the property is to be adjudicated in the main suit. In the result, the appeal is disposed of and the interim order is made absolute till the disposal of the suit. FAO. 357/2007. 3 The opinion expressed by the court below including reference of the commission report and the observation made by us are only for the limited purpose of disposal of the interim application and the appeal respectively, and the court below will not be swayed away by such observations while deciding the issues in the suit. P.R. Raman, Judge P. Bhavadasan, Judge sb.