IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 FAO.No. 51 of 2011() ------------------------- AGAINST THE ORDER DATED 22/12/2010 IN IA. 1128/2010 IN OS.141/2010 of SUB COURT, HOSDRUG .................... APPELLANTS/PETITIONERS/PLAINTIFFS ------------------------------------------------ 1. C.H. ABDUL RAZZAK, S/O.K.P. ABDULRAHIMAN, KAMMADAM HOUSE, PEROLE VILLAGE, HOSDURG TALUK, NILESHWAR. 2. C.H. ABDUL AZEES, S/O.K.P. ABDULRAHIMAN, KAMMADAM HOUSE, PEROLE VILLAGE, HOSDURG TALUK, NILESHWAR. 3. DR.C.H. MOHAMMED, S/O.K.P. ABDULRAHIMAN, KAMMADAM HOUSE, PEROLE VILLAGE, HOSDURG TALUK, NILESHWAR. BY ADV. SRI.SAJU.S.A RESPONDENT(S):RESPONDENTS/DEFENDANTS ------------------------------------------------------- 1. N.L. MUHAMMED KUNHI, S/O.N. ABDULLA, NELLIYARA, PARAPPA VILLAGE, HOSDURG TALUK, P.O. PARAPPA, PIN - 671 533. 2. K.P.ABDULRAHIMAN, S/O. MOHAMMED, RESIDING AT P.K. MANZIL, NEERVELI IN KANNAM KUNNU VILLAGE, THALACHERY TALUK, P.O. NEERVELI, PIN-670701. 3. C.H. SUBAIR, S/O.K.P.ABDUL RAHIMAN, MUTHIRAKKAL HOUSE, PARAPPA VILLAGE, HOSDURG TALUK, P.O. PARAPPA, PIN - 671 533. svs ..........2/-.... ...2... F.A.O. NO.51/2011 4. SHAMEEM.P.P,S/O.K.P. ABDULRAHIMAN, RESIDING AT P.K. MANZIL, NEERVELI IN KANNAM KUNNU VILLAGE, THALACHERY TALUK, P.O.NEERVELI, PIN - 670 701. 5. SHABEENA.P.O, D/O.K.P.ABDULRAHIMAN, RESIDING AT -DO- 6. JAMEEMA (MINOR), REPRESENTED BY GUARDIAN 2ND RESPONDENT, RESIDING AT -DO- 7. MUHAMMED NIZAR.K.N, S/O.K.P. ABDRULRAHIMAN, KAMMADATH CHERUKUNNU, PARAPA VILLOAGE, HOSDURG TALUK, P.O. PARAPPA, PIN - 671 533. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- F.A.O.No.51 OF 2011 ------------------------------------ Dated this the 22nd day of February, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. Having regard to the nature of the order being issued hereunder, notice to the 4th respondent dispensed with, preserving his right for re-hearing of the matter, if aggrieved by this judgment. The plaintiffs in a suit for declaration of title and for ancillary reliefs are the appellants who challenge the dismissal of an application for temporary injunction. We have heard learned senior counsel for the appellant and the learned counsel for the contesting respondents 1 to 3 and 5 to 7 quite in extenso on the different aspects of the matter, including as regards the inference drawn by the court below on the basis of FAO.51/11 2 the interim commissioner's report. It is admitted by both sides that the final report by the commissioner, after survey and demarcation with the help of the Taluk Surveyor, is yet to be placed on record. Obviously therefore, no observation of the court below in the impugned order regarding the identity of the property on the basis of the survey records will have any impact on the final trial after the final commissioner's report is brought on record. Therefore, in our view, the observations made by the learned Sub Judge to arrive at the conclusion that the interlocutory application has to be dismissed is made only for the purpose of the order that is under attack and would not survive to bind the parties and would guide the court at the final hearing of the suit. Learned Subordinate Judge has also taken note of the fact that any construction activity by the 7th respondent or any other person will be subject to the final disposal of the suit. Obviously the parties would not commit any act of waste. The impugned order will stand, however, that the findings or observations therein shall not bind the FAO.51/11 3 parties at the final hearing of the suit. The FAO is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.22/2.