IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 20208 of 2008(E) -------------------------- CMA.139/2006 of DISTRICT COURT, PALAKKAD .................... PETITIONER: ------------ UNNIKRISHNAN, S/O PANJALI AMMA, AGED 45 YEARS, RESIDING AT KALLADI HOUSE, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.ANAND RESPONDENTS: ------------- 1. V.B.SASI, S/O BALAN,AGED 45 YEARS, RESIDING AT VADAKKEPURA HOUSE, VARODE P.O., KOTTAYI II VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT. 2. ARJUNAN, S/O BALAN, AGED 34 YEARS, RESIDING AT JYOTHI NILAYAM, KOTTAYI I VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.20208 of 2008 ------------------------------- Dated this the 16th July, 2008. J U D G M E N T Petitioner is the plaintiff in O.S.No.283 of 2006, on the file of Munsiff Court, Alathur. The suit is one for permanent prohibitory injunction restraining the respondents from causing any obstruction to the peaceful residence of the plaint schedule property. I.A.No.1262 of 2006 was filed under Order XXXIX Rule 1 of Code of Civil Procedure for an order of temporary injunction. Under Ext.P3 order, learned Munsiff granted an order restraining the respondents from causing any obstruction to the petitioner and his family. Respondents challenged that order before District Court, Palakkad, in C.M.A.139 of 2006. Learned District Judge, on re-appreciation of the evidence, found that a suit for partition of the properties jointly belonging to the petitioner and respondents is pending and plaint schedule properties are a part of that property, and being a co-owner, petitioner is not entitled to an order of temporary injunction against the respondents. C.M.A. was allowed and Ext.P3 order was set aside. This petition is filed under Article 227 of the Constitution of India challenging Ext.P4 order. W.P.(C) No.20208/2008 2 2. The learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is that when the trial court elaborately considered the merits and demerits of the case and found that petitioner has a prima facie case and balance of convenience is in his favour, learned District Judge should not have interfered with that order, and, therefore, Ext.P4 order is to be quashed. It was argued that the order granted in favour of the petitioner is only restraining respondents from dispossessing him from the plaint schedule property and to that extent, learned District Judge should have confirmed the order. On hearing the learned counsel, I do not find any illegality or irregularity in Ext.P4 order warranting interference in exercise of the powers of this Court under Article 227 of the Constitution of India. It cannot be disputed that petitioner and respondents are co-owners in respect of the plaint schedule property. The question is in such circumstances whether petitioner is entitled to get an order of temporary injunction against co-owners. Being co- owners, respondents are also entitled to be in joint possession of the W.P.(C) No.20208/2008 3 property. The learned counsel further argued that when a suit for partition is pending, respondents are not entitled to dispossess the petitioner and to that extent, petitioner should not have been dispossessed. If that be the case, petitioner is entitled to seek appropriate order in the pending partition suit. Learned Munsiff is directed to dispose the suit expeditiously untrammelled by the findings or observations in Ext.P3 order. M.SASIDHARAN NAMBIAR, JUDGE nj.