IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 FAO.No. 153 of 2005() --------------------- AGAINST THE ORDER DATED 26/03/2005 IN IA 174/2005 IN OS.19/2005 of PRL.SUB COURT,IRINJALAKUDA APPELLANT/PETITIONER IN I.A. GEORGE, S/O.PALAMATTATHKUTTIYIL ITTOOP, PADINJARE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT/RESPONDENT IN I.A. DAVIS, S/O.PADINJAKKARA PULOSE, PARIYARAM VILLAGE DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 153 OF 2005 = = = = = = = = = = = = DATED THIS, THE 5TH DAY OF JUNE, 2009. J U D G M E N T Bhavadasan, J. The petitioner in I.A. 174/2005 in O.S. 19/2005 which was an application for a temporary injunction, which was rejected by the court below, is the appellant herein. 2. The suit was one for redemption of mortgage and injunction. The plaint schedule property belonged to the grand father of the petitioner/plaintiff which, on his death, devolved upon the father of the petitioer. Subsequent to his father's death, according to the petitioner, the property devolved on him. It is alleged that petitioner's father borrowed Rs. 2 lakhs from the respondent and as a security for due repayment of the said amount, he executed a document in favour of the respondent. Several allegations are made out in the plaint which are not relevant for the purpose of disposal of this appeal. Petitioner's claim is that he is entitled to redeem the mortgage. It was stated in the I.A. that on 12.11.2005 the respondent tried to commit trespass into the property, that he had no right or possession FAO 153/2005 :2: over the property and therefore he has to be restrained from doing so. The application was resisted by the respondent. The averment that the plaint schedule property belonged to the petitioner's father was not denied; but according to the respondent there was no monetary transaction between himself and the f petitioner's father as alleged and the petitioner's father assigned the property to him as per document No. 4942/97 of SRO, Chalakudy and thereafter, he is in absolute ownership, possession and enjoyment of the same. Pointing out that there was no reason as to why this possession is to be disturbed, he resisted the application for temporary injunction. 3. While considering the interlocutory application, the court below marked Exts. A1 to A4 and A5 on the petitioner's side. On the respondent's side Exts. B1 to B5 were brought in evidence. Besides, there is the Commissioner's report Ext.C1. On a consideration of the materials on record, the court below came to the conclusion that the petitioner was unable to make out a prima facie case in his favour and accordingly, dismissed the application. 4. The appellant would say that the court below was not justified in doing so in the light of the documents produced by him. It was pointed out that Ext.A1 produced by him is a mortgage deed and that there was FAO 153/2005 :3: evidence to show that he is in possession. 5. The court below considered the matter in detail and came to the conclusion that Ext.A1 document produced by the petitioner in support of his claim for title is seriously in doubt. It was also found that there is nothing to show that the petitioner is in possession of the property as alleged by him. It was also found that the Commissioner's report indicates that the property involved in the suit was lying contiguously with other items of property. There was also no acceptable material to come to the conclusion that the respondent had any intention or had made any attempt to trespass into the plaint schedule property. From the records, the court below came to the conclusion that the petitioner had no absolute right or possession over the plaint schedule property and it was on the above facts, that the court below rejected the petition. 6. No grounds are made out to interfere with the order of the court below. The suit is of the year 2005 and the impugned order was passed on 26.3.2005. There was no interim order passed by this Court and at this distance of time, it is not necessary to go into the merits or otherwise of the contentions made by the appellant. The court below shall dispose of the suit untrammelled by any observations made by the court below while disposing of the interlocutory application or by this Court while disposing FAO 153/2005 :4: of this appeal. Subject to the above observation, this appeal is dismissed. P.R. RAMAN, JUDGE. P. BHAVADASAN, JUDGE. KNC/-