IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 FAO.No. 102 of 2008() --------------------- AGAINST THE ORDER DATED 21/01/2008 IN IA 1896/2007 IN OS.202/2007 of SUB COURT,NEYYATTINKARA .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT: K.S. SREEKUMAR, S/O. LATE SREEDHARAN PILLAI, SREE NILAYAM, KATHIPPARA, KOOTHALI P.O., VELLARADA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.S.ARUN RAJ, SRI.S.V.RAJAN RESPONDENT(S): PETITIONERS/PLAINTIFFS: 1. PACHIYAMMA LALITHAMMA SHEELA BHAVAN, VELLARADA DESOM, VELLARADA VILLAGE (KADAYARA VEEDU, KATHIPPARA). 2. MADHAVAN PILLAI BHASKARAN NAIR KADAYARA VEEDU, KATHIPPARA, PANCHAMI, KATHIPPARA. 3. MADHAVAN PILLAI SUKUMARAN NAIR, KADAYARA VEEDU, KATHIPPARA, THENGUMKODE SURESH BHAVAN, KALLARA DESOM, KALLARA VILLAGE. 4. PANCHIYAMMA VIJAYAKUMARI AMMA, KADAYARA VEEDU, KATHIPPARA,NELLISSERI SHINU BHAVAN VELLARADA DESOM, VELLARADA VILLAGE. 5. K.S.SREEDEVI AMMA @ UMAYAMMA, VELLARADA DESOM, VELLARADA VILLAGE (NOW RESIDING AT SHIJU BHAVAN, POOVANKUZHY, VELLARADA P.O., THIRUVANANTHAPURAM. 6. KAMALAMMA PILLAI SREEJAYA, VELLARADA DESOM, VELLARADA VILLAGE (NOW RESIDING AT NO.25, KAVERI FLATS, J.K.BUILDERS, PANCHAYAT RAOD, PERUNGUDI, CHENNAI-96. ADV. SRI.G.S.REGHUNATH FOR R.2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/08/2009, ALONG WITH FAO 103 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO NOS.102 and 103 OF 2009 -------------------------------------------------------- Dated 3rd August 2009 Judgment RAMAN, J. These appeals are filed against the orders, granting temporary injunction against the plaintiffs and dismissing similar application filed by the defendants. The interim applications for temporary injunction were filed by both the plaintiffs and the defendants and so, both the applications were disposed of by a common order. Though two appeals are filed, virtually, the question raised in both the appeals is the same. So, both the appeals are heard and disposed of by this common judgment. 2. The suit is one for declaration and injunction. The whole dispute centres round on the question as to who are the legal heirs of deceased Balakrishnan Pillai. The fact that the property originally belonged to Balakrishnan Pillai is beyond dispute. He was in possession and enjoyment of the property. He died on 07.09.2006 unmarried, issueless and intestate and the plaintiffs, who claimed to be the children of Madhavan Pillai and FAO 102 & 103 of 2008 2 Panchiyamma, who are stated to be the direct siblings of Balakrishnan Pillai, claim to be in possession of the property, while the defendants would contend that Balakrishnan Pillai was the brother of the father of the defendants. While Balakrishnan Pillai was alive, he had entrusted the 2nd plaintiff Shri.Bhaskaran Nair to sell a portion of the plaint schedule property and a copy of the title deed was handed over to him. But the defendants are in absolute possession and enjoyment of the property and so, the plaintiffs filed the suit for recovery of possession. The deceased Balakrishnan Pillai is the one and only brother of Shri.Sreedharan Pillai, the father of the defendants and the plaintiffs are not brothers and sisters of Balakrishnan Pillai. Since this is only a suit for declaration, these issues will have to be thrashed out in the suit and it is premature for entering a finding this way or the other. In the matter of granting a temporary injunction, the courts are generally guided by two principles, namely prima facie possession and balance of convenience. The court below granted the injunction as prayed for, after entering a prima facie finding in favour of the plaintiffs FAO 102 & 103 of 2008 3 and regarding balance of convenience, it thought that it shall not dispossess the plaintiffs by granting an injunction in favour of the defendants. This court, while admitting the appeal and later, after hearing the parties, was not inclined to grant stay as prayed for, however, made a modification in the order and directed that the plaintiffs, who are the respondents in the present appeal to account for the income received from the property before the court below and for that purpose, they will be deemed as receiver appointed. After hearing both sides, we feel that this arrangement should continue until any change of circumstances is brought out to the notice of the court. It is now contended by the appellants that pursuant to the order passed by this court, the respondents are discretely cutting the rubber trees standing in the property and remitting only a paltry sum as against the actual income receivable from the property. They also made a reference to the Commissioner's report in this regard. It is not necessary for us to go into these questions at this stage. In case the appellants have a case that the income accounted is not correct, they will be free to seek appropriate FAO 102 & 103 of 2008 4 reliefs with regard to the mesne profits as also for any modification of the order, if situation warrants and for that purpose, any application can be moved before the court below. 3. As the suit is of the year 2007, the court below may consider disposal of the suit itself at an early date. Needless to say, the observations and findings made in the order under appeal as also by this court in this judgment will not prejudice or affect the right of the parties and in the matter of entering any finding on the issues in the suit. Untrammeled by such observations, the court below will finally dispose of the matter on the basis of the materials and records and after hearing the parties. The interim order passed by this court will continue until any modification is made by the court below after hearing both sides, if situation warrants for the same. Both the appeals are disposed of as above. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE FAO 102 & 103 of 2008 5 sta FAO 102 & 103 of 2008 6