IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 F.A. O.No. 147 of 2009 --------------------------------------- (AGAINST THE ORDER DATED 19.1.2009 IN I.A.NO.1263/2008 IN P.O.P.NO.12/2008 ON THE FILE OF THE SUB COURT, THRISSUR). .................... APPELLANT/PETITIONER ------------------------------------- VIKRAMAN, S/O.PARAPPUR VELAYUDHAN, RESIDING AT PERUMANNUR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): RESPONDENTS 1 TO 3: ----------------------------------------------------------- 1. VASANTHAKUMARI, WIDOW OF GANGADHARAN. 2. KRISHNA, D/O.VASANTHAKUMARI. 3. YAMUNA, D/O.VASANTHAKUMARI, ALL ARE RESIDING AT CHEMBUKKAVU DESOM, THRISSUR TALUK. ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O. NO. 147 OF 2009 --------------------------------------------------- Dated this the 1st October, 2009 JUDGMENT K.M. Joseph, J. This Appeal is filed against the order in I.A.No.1263/08 in P.O.P.No.12/08 on the file of the Sub Court, Thrissur. Appellant is the plaintiff. The Suit is one instituted for setting aside the Settlement Deed and for partition of the plaint schedule property. The I.A. was filed seeking an interim prohibitory injunction restraining the respondents from alienating the plaint schedule property. The court below has rejected the Application. 2. We heard Shri V. Chitambaresh, learned senior counsel appearing for the appellant and Shri Sreekumar Chelur, learned counsel appearing on behalf of the respondents. 3. Learned senior counsel for the appellant would point out that the reasons given for rejecting the Application by the F.A.O.147/09 2 court below are unsustainable. According to him, the reasons are two fold. Firstly, it is pointed out that the court below has found that the respondents are in possession of the plaint schedule property and hence no injunction can be granted. It is further pointed out that there was an earlier litigation culminating in a Judgment of a learned Single Judge of this Court. It is stated in the order that in an injunction petition the court has to see who is in possession of the plaint schedule property as on the date of filing of the Suit. It is further stated that the documents produced from the respondents' side show that respondents 1 to 3 are in possession and enjoyment of the plaint schedule property and the appellant has failed to establish a prima facie case. Balance of convenience is not found in favour of the appellant and hence the decision. No doubt, learned senior counsel may be correct in contending that in an application seeking injunction restraining the alienation of the property, the question as to the possession of the parties is not what is relevant. It would have been relevant if the order sought F.A.O.147/09 3 was one of injunction against trespass. But here, the injunction sought was one against alienation. The fact that the respondents were in possession was not relevant for deciding the issue. But, the learned counsel for the respondents would point out an event which has happened and that is that the plaint schedule property has already been alienated by Sale Deed dated 31.1.2009, which of course, according to the learned senior counsel for the appellant, was made pending the Suit and it is hit by lis pendens. In view of the fact that there is already an alienation, we are of the view that the Appeal has become infructuous and no orders are necessary. Hence the Appeal is dismissed as infructuous. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge