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 13TH JULY 2010 / 22ND ASHADHA 1932 FAO.No. 167 of 2010() ------------------------------- I.A.1981/2010 IN OS.157/2010 of PRINCIPAL SUB COURT,ERNAKULAM .................... APAPELLANT/RESPONDENTS/DEFENDANTS ----------------------------------------------------------------- 1. MYTHILY, AGED 75 YEARS, W/O. LATE RAMAN, PORUVELIPPARAMBIL HOUSE, CHITTOR ROAD, NORTH OF CEMETERY, KOCHI-18. 2. P.R. BABU, AGED 52 YEARS, S/O. LATE RAMAN, PORUVELIPPARAMBIL HOUSE, CHITTOR ROAD, NORTH OF CEMETERY, KOCHI-18. 3. MOHANDAS, AGED 50 YEARS, S/O. LATE RAMAN, PORUVELIPPARAMBIL HOUSE,CHITTOR ROAD, NORTH OF CEMETERY, KOCHI-18. 4. YAMUNA, AGED 45 YEARS, D/O. LATE RAMAN, PORUVELIPPARAMBIL HOUSE,CHITTOR ROAD, NORTH OF CEMETERY, KOCHI-18. BY ADV. SRI.T.RAMPRASAD UNNI, SMT.SMITHA GEORGE. RESPONDENT/PETITIONER/PLAINTIFF --------------------------------------------------------- P.N. JOY, AGED 63 YEARS, S/O. LATE NARAYANAN, PORUVELIL HOUSE, CHITTOR ROAD, NORTH OF CEMETERY, KOCHI-18. BY ADV. SRI.A.BALAGOPALAN, SRI.M.N.MANMADAN, SRI.K.SANEESH KUMAR. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = F.A.O.No.167 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of July, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The respondent has appeared through counsel. On consent of parties, the matter has been taken up for final disposal. 2.The appellants are the defendants in a suit for fixation of boundary and other reliefs. The sole plaintiff has been granted an order of temporary injunction restraining the defendants from carrying on any construction in the property in question. The order of injunction also restrains the defendants from trespassing into the property. The court below, in paragraph 6 of the FAO167/10 -: 2 :- impugned order, has found that there is no specific boundary between the petitioner's property and the counter-petitioners' property and the main dispute is regarding the actual extent of property in the possession of the petitioner and the dispute is as to whether it is 17 cents or 20 cents. The court below also noticed that the suit earlier filed by the plaintiff's father stands either dismissed for default or pending before the court below. That is also a suit for fixation of boundary. Faced with this situation, the learned counsel for the plaintiff quite rightly accepts the suggestion of this Court that all that is required is that the plaintiff's rights in terms of the decree, if any that may be passed in the suit, have to be preserved. For this, even if the defendants carry out any construction in terms of the building permit and plan that they have got from the local authority, that will only be subject to the result of the suit and the defendants will not be entitled to claim any right merely on account of FAO167/10 -: 3 :- such construction having been carried out. The result of the decree, if any, that may be passed in favour of the plaintiff could be enforced notwithstanding any such construction. If the defendants put up any construction, that will be solely on their own risks and costs. For the aforesaid reasons, we vacate the impugned order passed by the court below on 9.4.2010 on I.A.No.1981/2010 and the interim order that was confirmed as per that order and direct that the defendants will not commit any act of waste in the property but will be entitled to put up construction in terms of the approved plan and permit provisionally and subject to the result of the suit and solely at their risk and costs and they would not be entitled to any equitable considerations, if the suit is decreed ultimately. We also clarify that this judgment does not, in any manner, decide issues relating to the identity of the property and the rival claims of the parties and the court below will FAO167/10 -: 4 :- decide such issues, if and when raised. The appeal is ordered accordingly. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/1507