IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 FAO.No. 48 of 2009() -------------------- I.A.956 OF 2008 IN AS.184/2008 of II ADDL. DISTRICT COURT, PALAKKAD .................... APPELLANTS/RESPONDENTS: ------------------------------- 1. SARASWATHI, W/O.NATARAJAN PILLAI, AGED 71 YEARS, APPUPILLAYUR, ERATTAKULAM POST, PENA, PALAKKAD TALUK. 2. KRISHNAVENI, W/O.SUNDARAN, AGED 49 YEARS, ANNAYAPPANCHALLA, PAMPAMPALLAM POST, PUDUSSERY AMSOM AND DESOM, PALAKKAD TALUK. 3. SANTHA PANKAJAM, D/O.SUNDARAN PILLAI, AGED 32 YEARS, -DO- 4. JAYASUDHA, D/O.SUNDARAN PILLAI, AGED 23 YEARS, -DO- 5. ANANTHAKRISHNAN, S/O.SUNDARAN PILLAI, AGED 19 YEARS, -DO- 6. SUJATHA, W/O.SARAVANAN, AGED 27 YEARS, ANNAYAPPANCHALLA, PAMPAMPALLAM POST, PUDUSSERY AMSOM AND DESOM, PALAKKAD TALUK. BY ADV. MR. N.N.SUGUNAPALAN, SENIOR ADVOCATE MR. MAHESH V. RAMAKRISHNAN MR. S.SUJIN RESPONDENTS/PETITIONERS: -------------------------------- 1. RAMACHANDRAN, S/O.LATE SANKARAN PILLAI, AGED 53 YEARS, ANNAYAPPANCHALLA, PAMPAMPALLAM (POST), PUDUSSERI AMSOM AND DESOM, PALAKKAD TALUK. FAO.48/09 (2) 2. THANKAMMA, W/O.LATE AYYAVU PILLAI, AGED 69 YEARS, -DO- 3. PONNAMMA, W/O.LAKSHMANAN, AGED 64 YEARS, -DO- 4. RANGAMMA, W/O.LAKSHMANAN, AGED 59 YEARS, -DO- THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24/02/2009, ALONG WITH FAO. NO. 49 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.48/2009 ORDER ON I.A. 515 OF 2009 IN F.A.O. 48 OF 2009 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 24.2.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O. Nos.48 & 49 OF 2009 -------------------------------------------------- Dated this the 24th day of February, 2009 J U D G M E N T Petitioners are the respondents in A.S. 184 of 2008, who are the defendants in O.S.332 of 1999 on the file of Sub Court, Palakkad. Petitioners instituted the suit claiming partition and separation of their shares. The trial Court, after recording the evidence, dismissed the suit. Challenging that judgment, A.S.184 of 2008 was filed before District Court, Palakkad. When the appeal was pending, I.A. 956 of 2008 was filed by the petitioners, under Order XXXIX Rule 1 of Code of Civil Procedure seeking an order of temporary injunction restraining respondents from committing waste and also alienating the plaint schedule properties. An interim order was passed originally. It was later made absolute, as per order dated 19.11.2008 by Additional District Judge, Palakkad. F.A.O.48 of 2009 is filed challenging that order. Petitioner had also filed I.A.1563 of 2008 before the final disposal of I.A.956 of 2008 seeking an order of temporary injunction restraining respondents 2 to 6 from committing waste in the plaint A to F of FAO.48 & 49/2009 2 the properties and also alienating the properties. That petition was also heard with I.A.956 of 2008 and as per the common order, the order of interim injunction originally granted was made absolute. F.A.O. 49 of 2008 is filed challenging that order. 2. Learned counsel appearing for the appellants was heard. 3. The argument of the learned counsel is that learned Additional District Judge was wrong in appreciating Exts.A1 to A3, the proceedings before the Land Tribunal and its binding force and therefore the orders are unsustainable. Learned counsel also argued that when I.A.956 of 2008 was filed for an order of temporary injunction restraining respondents from committing waste and alienating the properties, for the very same purpose, respondents are not entitled to file another application and therefore learned District Judge should not have entertained I.A.1563 of 2008 and therefore the order in that application is to be set aside. Learned counsel also argued that when the trial Court after evidence found that petitioners did not establish that plaint schedule properties are the co-ownership property, learned District Judge was not justified in granting an order of temporary injunction as petitioners cannot claim to have a prima facie case. FAO.48 & 49/2009 3 4. On hearing the learned counsel, I find no reason to interfere with the order. The question whether Exts.A1 to A3 are valid and binding, is to be decided in the appeal and not in the application. By the impugned order only committing waste and alienating the properties are restrained. When the appeal is pending learned Additional District Judge is competent to pass such an order. In such circumstances I find no reason to interfere with the order. The finding of the learned Additional District Judge in the impugned order is therefore not to be interfered at this stage. It is made clear that District Judge has to decide the appeal untrammelled by any observation in the impugned orders. 5. By the impugned order, learned Additional District Judge had only restrained appellants from alienating the property or committing waste till disposal of the appeal. Hence appeals are only to be dismissed. Learned District Judge is directed to dispose the appeal, as expeditiously as possible, untrammelled by any observation in the impugned orders. Both the appeals are dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb