IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 FAO.No. 314 of 2010() ------------------------------ IA. NO.773/2010 IN AS.20/2010 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT/RESPONDENTS ----------------------------------------- 1. FATHIMA, W/O.VATTAPILLY IBRAHIM, AZHIKODE VILLAGE, ERIYADU DESOM, KODUNGALLUR TALUK. 2. MUHAMMED SAGEER, S/O.VATTAPILLY IBRAHIM, AZHIKODE VILLAGE, ERIYADU DESOM, KODUNGALLUR TALUK. 3. ABDUL GAFOOR, S/O.VATTAPILLY IBRAHIM, AZHIKODE VILLAGE, ERIYADU DESOM,KODUNGALLUR TALUK. 4. SIRAJUDEEN, S/O.VATTAPILLY IBRAHIM, AZHIKODE VILLAGE, ERIYADU DESOM,KODUNGALLUR TALUK. 5. NOUSHAD, S/O.VATTAPILLY IBRAHIM, AZHIKODE VILLAGE, ERIYADU DESOM, KODUNGALLUR TALUK. BY ADV. SRI.K.S.BHARATHAN RESPONDENT(S): -------------------------- FATHIMA, DR.NAZEER HUSSAIN, KARUNAGAPPILLY TALUK, PANDIKASALA VEETTIL, PAINOOR DESOM, THANNYAM VILLAGE, THRISSUR TALUK, REP. BY POWER OF ATTORNEY HOLDER ALTHAF, S/O. IBRAHIM ULLAM PUZHAYIL S.N.PURAM VILLAGE KODUNGALLUR TALUK. ADV. SRI.T.H.ABDUL AZEEZ THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/11/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - F.A.O.No. 314 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of November, 2011 J U D G M E N T The respondents in I.A.No.773 of 2010 in A.S.No.20 of 2010 before the Additional Sub Court, Irinjalakuda are the appellants. They suffered an interim order at the hands of the lower appellate court. 2. O.S.No.950 of 2007 before the Munsiff's Court, Kodungaloor, which was a suit for injunction simpliciter filed by the petitioner before the lower appellate court. After trial, it was found that the plaintiffs were unable to prove their exclusive possession to the suit property and accordingly the suit was dismissed. The plaintiffs carried the matter in appeal as A.S.No.20 of 2010 before the Sub Court, Irinjalakuda. Along with the appeal, she moved an interlocutory application as I.A.No.773 of 2010 seeking an interim injunction against the respondents in the appeal. The respondents entered appearance and opposed the application. However the court below was inclined to grant -:2:- F.A.O.No. 314 of 2010 an interim order as prayed by the appellant. It is the said the order ,that is assailed in this appeal. 3. The learned counsel appearing for the appellant pointed out that the trial court has categorically found that the plaintiffs had not been able to prove their possession and that the properties are lying contiguously without demarcating boundaries between them. It is also pointed out that, along with the suit, the appellant had moved an interlocutory application for interim injunction. Though interim expartee order was granted, after the defendants entered appearance and filed counter, the said order was not confirmed. The fact that the interim order was not extended and the suit was ultimately dismissed, should have dissuaded the court below from granting an interim order as prayed for by the appellant. 4. There is considerable force in the above submission. The suit was one for injunction simpliciter and possession is the only criteria that determines the fate of the suit. That -:3:- F.A.O.No. 314 of 2010 was found against the plaintiffs. The learned counsel appearing for the appellant referred to the commissioner's report and plan and also the finding of the trial court, which indicate that the properties are lying contiguously without any demarcating boundary. It was because of these circumstances the trial court was inclined to hold that the possession had not been proved. 5. Before the lower appellate court, it appears that the respondents had pointed out that the plaintiffs did not enjoy an interim injunction during the pendency of the suit. Surprisingly enough, the lower appellate court observed that since the records are not before it, it is not able to verify the same. As a matter of fact, if there was an interim order, the plaintiff would have been the best person to say about it. It is unnecessary for the lower appellate court to wait for the lower court records. Apart from the above fact, the fact that the suit for injunction had been dismissed and the findings show that the properties lie undemarcated -:4:- F.A.O.No. 314 of 2010 should have dissuaded the court below from passing an order as prayed for. Whatever that be, this Court while admitting the appeal directed the parties to maintain status quo as on 04.10.2010. That order continues to be still in force. There is no reason why the said order do not continue until the disposal of the appeal. The order dated 04.10.2010 directing to maintain status quo as on that date made absolute and lower appellate court is directed to dispose the appeal as expeditiously as possible. Accordingly this appeal is disposed of. Send a copy of the judgment to the lower appellate court. P.BHAVADASAN, JUDGE kkj