IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 WP(C).No. 7318 of 2008(U) ------------------------- CMA.23/2007 of DISTRICT COURT, THODUPUZHA I.A.No.171/07 IN OS.5/2007 of SUB COURT,KATTAPPANA .................... PETITIONER: ------------ K.R. KAMALAMMA, AGED 51, W/O.BABU PUTHENVILAYIL HOUSE, KANCHIYAR P.O. AYYAPPANCOIL. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENTS: ------------- 1. MR. K.SUKUMARAN, AGED 52, S/O.KUMARAN SREEKRISHNA BHAVAN, SWARAJKARA, AYYAPPANCOIL. 2. RADHAMANI, W/O.SUKUMARAN SREEKRISHNA BHAVAN, SWARAJKARA, AYYAPPANCOIL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------- W.P.(C).No.7318 of 2008 ------------------------------------------- Dated this the 3rd day of March, 2008 JUDGMENT This writ petition is preferred against the order of the District Judge, Thodupuzha in C.M.A.No.23/07 whereby he had set aside the order passed by the Sub Judge, Kattappana. The suit is one for injunction and the petition is also one for a temporary injunction. 2. The petitioner is the first defendant in O.S.No.5/07 of Sub Court, Kattappana. The plaintiffs in the suit had purchased the property of course with certain commitments to wipe off the liability due to the HDFC. The defendants on the other hand would contend that the plaintiffs are not in possession of the property. The learned Munsiff on the basis of the Commissioner's report did not grant any order of injunction whereas the appellate court allowed the appeal and granted an order of injunction. At the outset, I may like to point out that the plaintiffs in the suit have admittedly claimed the property under the defendants by virtue of a registered assignment deed WPC7318/2008 2 executed by the defendants in favour of the plaintiffs and there are clear recitals in the documents regarding the handing over of the property. Immediately after one week, the plaintiffs have approached the court to protect the property. The defendants would contend by virtue of an agreement on the same day, there is an undertaking to discharge the amount due to the HDFC and they have not done it and still the property is in possession of the defendants. I have perused the order of the District Judge. The learned judge has primarily relied upon the documents Exts. A1 and A2 by virtue of which the property has been assigned in favour of the plaintiffs by the defendants in the suit. Ext.A3 agreement which is in relation to the payment of money does not contain any recital regarding possession. So, primarily the document executed by the defendants itself reveals that possession is given to the plaintiffs. No further evidence is necessary at the primary stage to find out a prima facie case of possession in favour of the plaintiffs. As per the work memo submitted, the defendants wanted the Commissioner to note that they are in possession of the property. Very strangely the Commissioner also makes a report that there is evidence to show WPC7318/2008 3 that the first defendant is residing with his family in the house. It has to be understood that the suit had to be instituted within one week after the execution of the document and even if some utensils or furniture is found in the house which belong to the defendants that does not mean that they are in possession especially in a case where the defendants had handed over the possession of the property to the plaintiffs by virtue of a registered assignment deed. 3. I find that the learned District Judge was correct in his finding and that it does not call for any interference. But as directed by the District Judge let the matter be tried as expeditiously as possible within a time frame of three months. I make it clear that the trial court shall not be influenced by any of the observations made by me in this judgment or in the judgment of the District Judge and untrammeled by the same the matter is to be disposed of. The writ petition is disposed of as above. M.N.KRISHNAN, JUDGE csl