IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 FAO.No. 325 of 2008() --------------------- AGAINST THE ORDER DATED / / IN IN IA 1972/2007 IN OS.163/2007 of SUB COURT, OTTAPPALAM .................... APPELLANTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. SEBASTIAN @ DEVASSYKUTTY, AGED 64 YEARS, PENSIONER, S/O.KUNCHACKO, PALLIPPADAM VEEDU, KANJOORKARAYIL KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. 2. P.C.CHACKO, S/O.KUNCHACKO, PALLIPPADAM VEEDU, KANJOORKARAYIL KIZHAKKUMBHAGAM, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANAKANNAN RESPONDENT(S): PETITIONER/PLAINTIFF ----------------------------------- SELVARAJ, S/O.LATE PONNUSWAMY, KOTTATHARAYIL, NAIKKARUPADI, MANNARKKAD TALUK, PALAKKAD DISTRICT. ADV. SRI.E.R.VENKATESWARAN SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 SRI.C.A.ANOOP FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/07/2009, ALONG WITH WPC NO. 7544 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 325 OF 2008 & WP(C) 7544/09 -------------------------------------------------------- Dated 20th July 2009 Judgment RAMAN, J. FAO No.325/08 This is an appeal against the order granting temporary injunction, restraining the appellants/respondents from interfering with the possession of the petitioner. The appellants are defendants in the suit. The plaintiff instituted the suit for a declaration that document Nos. 4778 and 4779/06 of the SRO, Palakkad, assigning the plaint schedule property to the defendants and lease deed dated 01.03.2006 in favour of the second defendant are void and not binding on the plaintiff and prayed for consequential injunction restraining the defendants from interfering with his possession and enjoyment of the property. 2. The appellants had earlier approached this court by filing FAO No.25/08 against the order granting temporary injunction. After considering the materials on record, this court found that though the assignment deed was executed, actual possession was not given simultaneously as time was granted to give possession. Whether or FAO 325/08 & WPC 7544/09 2 not subsequently the possession is given, was therefore, a disputed question of fact. Giving both sides opportunity to adduce evidence with regard there to, the matter was remanded by judgment dated 29.1.2008. Pursuant to that, the appellants herein gave additional evidence. But, no additional evidence was adduced by the respondent herein (plaintiff). The court below by the impugned order, again granted injunction as sought for. Hence this appeal. 3. The learned Senior Counsel Shri.P.N.K.Achan for the appellants would contend that the court below did not appreciate the evidence adduced by RW1. Even the consideration of the evidence tendered by RW2 was not proper. But the learned senior counsel Shri.Chidambaresh appearing for the respondent submits that the court below considered the entire evidence on record and again, came to the same conclusion and granted the injunction as sought for. 4. After hearing both sides and going though the records, we find that there is a building in the property. There is some evidence to show that some damage has been caused to the building. The subject matter of the suit is the said building and the appurtenant land thereto. Neither side has adduced any evidence to show the FAO 325/08 & WPC 7544/09 3 receipt of any income from the said land. In other words, it is in a neglected state of affairs because of the pendency of the suit. Therefore, we suggested that pending disposal of the suit, why not a Court Receiver be appointed to take possession and manage the property, to which both sides agreed. Accordingly, we direct the court below to appoint a Receiver to take possession of the property involved in the suit and give necessary direction to the Receiver for proper accounting. It is unnecessary to mention that the Receiver being an Officer appointed by the court, neither side can cause any obstruction and that woo, when we are passing an order as agreed to by both sides. However, the court is not helpless and appropriate direction will be given by the court below in case there is any obstruction caused to the taking of possession and managing of the property by the Receiver. Pursuant to the impugned order passed by the Sub Court, Ottapalam, the suit stands transferred to Sub Court, Palakkad. In such circumstances, the Sub Court, Palakkad, to which the suit stands transferred, will implement the above order. A copy of this order shall be directly forwarded to the Sub Court, Palakkad. In view of the long pending dispute between the parties, it is necessary to give a quietus to the same. Therefore, we direct the court below to FAO 325/08 & WPC 7544/09 4 fix a convenient date for inclusion of the suit in the list and dispose of the same expeditiously, at any rate, within a period of six months. The appeal is disposed of as above. WP(C)No.7544/09 This is a Writ Petition challenging the orders revising the effect of attachment of the property as sought for by the defendants in the connected suit. In view of the fact that we have already directed the court below to appoint a Receiver, there is no necessity to attach the property as such. So the Writ Petition has become infructuous and it is accordingly closed as infructuous. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 325/08 & WPC 7544/09 5