IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH JANUARY, 2008 / 9TH MAGHA, 1929 FAO.No. 25 of 2008 & Caveat Petition No.49 of 2008 ( OS.No.163/2007 of SUB COURT, OTTAPPALAM) .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------------- 1. DEVASSYKUTTY @ SEBASTIAN, AGED 63, PENSIONER, PALLIPPADAM HOUSE, KANJOOR KARAYIL, KIZHAKKUMBHAGOM VILLAGE, ALUVAI TALUK, ERNAKULAM DISTRICT. 2. P.C.CHACKO, AGED 59, S/O. KUNCHAKKO, PALLIPPADAM VEEDU, KANJOORKARAYIL, KIZHAKKUMBHAGAM VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.T.A.SHAJI SRI.K.P.BASHEER SMT.T.V.NEEMA RESPONDENT/PETITIONER/PLAINTIFF: ------------------------------------------------- G.P.SELVARAJ, AGED 63, S/O. LATE PONNUSWAMY, KOTTATHARAYIL, NAIKKARUPADI, MANNARKKAD TALUK. BY ADV. SRI.E.R.VENKATESWARAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & V. K. MOHANAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. NO. 25 OF 2008 = = = = = = = = = = = = = DATED THIS, THE 29TH DAY OF JANUARY, 2008. J U D G M E N T Raman, J. This is an appeal against an order of injunction passed against the defendant - appellant herein, in I.A. 1972/2007 in O.S. 163/2007, on the file of the Sub Court, Ottappalam. The suit is one for declaration of document Nos. 4778 and 4779/2006 of the SRO, Palakkad and lease deed dated 1.3.2006 to be not binding on the plaintiff and consequential injunction restraining the defendants from interfering with the possession and enjoyment of the plaint schedule properties by the plaintiff or creating any document on the strength of the challenged assignment deeds and lease deed. I.A. 1972/2007 was filed along with the suit for a temporary injunction restraining the defendants from interfering with the plaintiff's possession till the disposal of the suit. 2. In the plaint averment it is alleged that the two documents in question were executed without understanding the contents thereof and the execution of the same was done in a fraudulent manner without any consideration and not acted upon. According to the defendants/appellants, FAO 25/2008 :2: those documents were validly executed for consideration paid. It is however admitted that after the agreement, the first defendant sought time to arrange consideration and hence a lease deed was executed on 1.3.2006 in favour of the second defendant brother for a period of 11 months and the properties were put in his possession for cultivation. In the meanwhile, the first defendant arranged funds and paid the entire consideration and got two assignment deeds executed on 15.7.2006. Thus, according to the defendants/appellants, the plaintiff/respondent has no title or possession. The question as to whether the disputed documents are validly executed will arise for consideration in the suit. The only question that has to be considered in a temporary application of this nature is as to who is in possession of the property. The court below found that the plaintiffs are in defacto possession of the property and hence granted injunction. The said order is impugned in this appeal. 3. Learned counsel Sri.Shaji, appearing on behalf of the appellants strenuously contended before us that the court below did not consider any of the documents produced along with the pleadings and the court even mis- red the evidence. Prima facie, there cannot be any doubt that the two documents were executed and registered between the parties. The question as to whether pursuant thereto the properties were put in possession of the FAO 25/2008 :3: defendants/appellants who purchased the same, arises for consideration. Admittedly, the 'Dharana pathram' dated 15.7.2006 shows that three months time was granted by the defendants/appellants to the plaintiff/respondent for vacating from the premises. Subsequently, another 'Dharana pathram' was also executed on 15.1.2007, granting three months more time to be vacated. It is contended by the defendants that on the expiry of the second 'Dharana pathram' the plaintiff vacated the property; but later he trespassed in to the same and is in possession. This contention was found to be unacceptable by the court below. But curiously enough nobody was examined on the side of the plaintiff/petitioner nor on the side of the defendant. The index also shows that no documents were marked in the temporary injunction application. It is true that the documents produced in the suit by the parties can be looked into in appreciating the facts to mould the relief. The suit has not come up for trial. Both sides produced evidence in support of their pleadings. No such documents were seen referred to for the purpose of considering the interim injunction application. 4. In the factual situation, we find that two things are clear. That the documents were executed and registered, subsequently possession was not given by the plaintiff and time was granted by the defendants for vacating the premises. Whether in fact the plaintiff vacated the premises on the FAO 25/2008 :4: expiry of the period or later, is a point on which there is absolutely no evidence in the case. Therefore, unlike a case where title follows possession, here there is some evidence to show that even after execution of the title deed time was granted to the plaintiff by the defendants to vacate the premises. In such circumstances, we find that evidence is lacking to enter a finding as to whether actual possession was given on the expiry of the 'Dharana pathram' or not. Therefore, we direct that both the parties be given an opportunity to adduce evidence in this regard and the court below shall pass appropriate orders. 5. Though the learned counsel appearing for the respondent stated that the Commissioner has visited the property and submitted a report which would show that possession continues with the plaintiff since various household utensils were found in the house at the time of the visit of the Commissioner, the presence of the defendant and his wife are also recorded in the report. But the court below did not consider the said commission report and no reference is however, made by the court below with regard to the said findings by the Commissioner. In these circumstances, we find that the matter requires reconsideration. We are not expressing any opinion on the merits of the contention raised by the parties. A status quo order was already granted by the court below earlier, prior to the order impugned FAO 25/2008 :5: in this appeal. In these circumstances, we direct that status quo as on today shall be maintained until the court below passes fresh orders as indicated above. The parties shall appear before the court below on 12.2.2008. P.R. RAMAN, (JUDGE) V. K. MOHANAN, (JUDGE) knc/-