IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 FAO.No. 221 of 2008 AGAINST THE ORDER DATED 11/08/2008 IN IA 456/2008 IN OS.69/2008 OF SUB COURT,THODUPUZHA APPELLANTS: RESPONDENTS: DEFENDANTS: -------------------------------------------------- 1. JAMES.M CHEMPARATHY, S/O. MANI, CHEMPARATHY HOUSE, MUTHALAKODAM.P.O, KARIKODE VILLAGE, THODUPUZHA TALUK - 685 605. 2. MANUAL.M CHEMPARATHY, S/O. MANI, -DO- 3. JOY M. CHEMPARATHY, S/O. MANI, -DO- BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT: PETITIONER: PLAINTIFF: -------------------------------- PHILSY,W/O.THOMAS,ONATTU HOUSE,ELAM DESOM, ALAKKODU VILLAGE,THODUPUZHA TALUK,IDUKKI,NOW RESIDING AT 1/25,GLEN ARTIST STREET,FERRY GROVE, QLP,AUSTRALIA,REPRESENTED BY HER POWER OF ATTORNEY HOLDER JAMES, S/O.VARKEY,NADUKKUDIYIL HOUSE,UDUMBANNOOR.P.O, UDUMBANNOOR VILLAGE,THODUPUZHA TALUI,IDUKKI DISTRICT. ADV. SRI.K.C.CHARLES THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/09/2008, ALONG WITH FAO. NOS. 222 OF 2008, 223 OF 2008 AND 224 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ------------------------------------------------------------- F.A.O.NOS. 221, 222, 223 & 224 OF 2008 ------------------------------------------------------------- Dated this the 23rd September, 2008 JUDGMENT K.T.Sankaran, J. These appeals arise out of the orders passed in the applications for injunction in four suits, namely, O.S.Nos.69 of 2008, 58 of 2008, 61 of 2008 and 70 of 2008, on the file of the Court of the Subordinate Judge of Thodupuzha. A common order dated 11.8.2008 was passed in I.A.No.456 of 2008 in O.S.No.69 of 2008 and I.A.No.458 of 2008 in O.S.No.70 of 2008. F.A.O.Nos.221 of 2008 and 224 of 2008 arise out of the said common order. I.A.No.380 of 2008 in O.S.No.58 of 2008 and I.A.No.400 of 2008 in O.S.No.61 of 2008 were disposed of by another common order dated 11.8.2008, out of which, F.A.O.Nos.222 of 2008 and 223 of 2008 arise. 2. O.S.No.69 of 2008 was filed by Philsy against James M.Chemparathy and two others for declaration of title and possession in respect of the plaint schedule property. O.S.No.70 of 2008 was filed by Manual James against James Augustine and two others, including Philsy, for a declaration that Ext.A1 sale deed is void and for F.A.O. NOS.221, 222, 223 & 224 OF 2008 :: 2 :: consequential injunction. O.S.No.58 of 2008 was filed by James Augustine against Manual M.Chemparathy and others for declaration of title and possession over the plaint schedule property therein and for consequential injunction. O.S.No.61 of 2008 was filed by Manual M.Chemparathy against James Augustine for a declaration that Ext.A1 sale deed is void and for consequential injunction. 3. The court below allowed I.A.No.456 of 2008 in O.S.No.69 of 2008, filed by Philsy for temporary injunction and dismissed I.A.No.458 of 2008 in O.S.No.70 of 2008. Likewise, the court below allowed I.A.No.380 of 2008 in O.S.No.58 of 2008, filed by James Augustine and dismissed I.A.No.400 of 2008 in O.S.No.61 of 2008. 4. The case of the appellants in F.A.O.No.221 of 2008 and 224 of 2008 is that the plaint schedule property along with other properties are in the ownership and possession of Appellant No.1. Appellant No.1 borrowed an amount of Rs.30,000/- from James Augustine and as security for due repayment of the same, sale deed No.1398/1998 of S.R.O Karikode was executed in favour of Philsy. The properties of Appellant No.1 are lying contiguously with the plaint schedule properties. The appellants say that it was agreed between the parties that when the loan amount and interest are repaid the property would be re-conveyed to F.A.O. NOS.221, 222, 223 & 224 OF 2008 :: 3 :: Appellant No.1. The sale deed was not intended to be acted upon and the property continues to be in the possession and enjoyment of Appellant No.1, namely, James M.Chemparathy. 5. The case of the appellants in F.A.O.Nos.222 of 2008 and 223 of 2008 is that on borrowing Rs.25,000/- from James Augustine, as a security for the due repayment of the same, sale deed No.1010/1998 was executed by the first appellant in favour of James Augustine. It was agreed that when the loan amount and interest are repaid the property would be re-conveyed to the first appellant. The appellants contended that the sale deed is void. 6. The court below held that the question whether the documents referred to above were executed only as security for the loan transaction and whether there was an understanding between the parties for re- conveyance, is to be decided only after taking evidence in the suit. The title deeds, prima facie, show that title and possession was handed over to the assignee. Mutation was also effected in the name of the assignee. It was also held that from the materials available, it is prima facie established that the assignees are in possession of the property. The balance of convenience was also taken note of by the court below. It was also held that if injunction is granted against the assignees, irreparable F.A.O. NOS.221, 222, 223 & 224 OF 2008 :: 4 :: injury would be caused to them. The orders impugned were passed after arriving at the findings mentioned above. 7. After carefully considering the contentions raised by the parties and perusing the orders passed by the court below, we are of the view that the court below has not committed any error in granting the interim order in O.S.Nos.69 of 2008 and 58 of 2008. Therefore, we are not inclined to accept the challenge made by the appellants against the said findings. However, we are of the view that appropriate orders should be passed to preserve the property in dispute in the same condition as on the date of the suits. If the assignees commit waste or cut out trees, the status quo would be altered and injury would be caused to the assignors, if ultimately they were to succeed. In the facts and circumstances of the case, we are of the view that the orders passed by the court below require modification to the above extent, by granting injunction against the assignees restraining them from cutting trees or committing waste or from altering the nature of the property till the disposal of the suits. For the aforesaid reasons, we dismiss F.A.O.Nos.221 of 2008 and 222 of 2008. F.A.O.Nos.223 of 2008 and 224 of 2008 are partly allowed and the defendants in O.S.Nos.61 of 2008 and 70 of 2008 are restrained by an order of injunction from cutting trees and committing waste in the F.A.O. NOS.221, 222, 223 & 224 OF 2008 :: 5 :: plaint schedule properties or from altering the nature of the properties till the disposal of the suits. Pending interlocutory applications are hereby disposed of. (KURIAN JOSEPH) Judge (K.T.SANKARAN) Judge ahz/