IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 FAO.No. 303 of 2008() --------------------- AS.148/2006 of SUB COURT,KOTTARAKKARA .................... APPELLANTS (PETITIONERS/APPELLANTS) -------------- 1. V.PRABHAKARAN, S/O.VELAYUDHAN, AGED 78 YEARS, LAL BHAVAN, VELLAMPARA, NILAMEL MURI, NILAMEL VILLAGE. 2. SYAMALA KUMARI, W/O.UNNIKRISHNAN UNNITHAN, AGED 51 YEARS, KALANILAYAM OF DO. BY ADV. SRI.ALEX N.MATHEW (KOLLAM) SRI.H.RAMANAN RESPONDENT(S): (RESPONDENTS/ RESPONDENTS) -------------------- 1. P.REMANY, W/O.LATE SASIDHARAN, AGED ABOUT 51 YEARS, USHA VILASOM, EDATHARA, KADAKKAL VILLAGE. 2. S.R.SAJU, S/O.LATE SASIDHARAN, AGED ABOUT 29 YEARS OF DO. 3. S.R.SANJU, S/O.LATE SASIDHARAN,AGED ABOUT 31 YEARS, OF DO. BY ADV. SRI.PHILIP T.VARGHESE BY ADV. SRI.THOMAS T.VARGHESE THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. ------------------------------- F.A.O. No.303 of 2008 ------------------------------- Dated this the 12th August, 2009 J U D G M E N T Raman, J. The appellants are defendants in the suit, O.S.No.553 of 2002, on the file of the Munsiff's Court, Kottarakkara. The respondents are the plaintiffs in the said suit. The suit was one for permanent injunction. The appellants herein who were the defendants set up a counter claim for declaration of title and recovery of possession over the plaint schedule property. The counter claim was dismissed and the suit was decreed in favour of the plaintiffs, against which A.S.No.148 of 2006 filed by the appellants herein is pending before the Sub Court, Kottarakkara. The appellants in the said appeal filed I.A.No.691/2008 contending that the plaintiffs are attempting to trespass into the property of the appellants. According to them, F.A.O.No.303 of 2008 2 a portion of the property in front of the plaintiffs was taken for road widening, as a result, they are trying to put up a new structure trespassing into the property of the appellants. The court below by the impugned order dismissed the temporary injunction application against which the present appeal is filed 2. In the affidavit filed in support of the petition, it is averred that respondents are trying to encroach the property of the appellants with a view to construct a new structure within the compound of the appellants' property. This was resisted by filing a counter affidavit stating that petition itself was filed with a mala fide intention, and it was the appellants who were trying tp prevent the respondents from enjoying the fruits of the decree and from using the plaint schedule property. It is also submitted that the plaint schedule property is clearly demarcated with its boundary, it is only half a cent in extent situated in a junction, on the eastern and western side, there are walls of concrete buildings of others, and on the southern side, adjacent property owner has constructed a wall using hollow bricks. The appellants F.A.O.No.303 of 2008 3 have no property around the plaint schedule property sharing any common boundary. So, the question of encroachment does not arise. 3. The court below considered the question as to whether temporary injunction is liable to be granted. After elaborate consideration of the matter and after discussing with the materials on record, it came to the conclusion that the plaintiffs are not entitled for any temporary injunction as against respondents herein. It also found that there is no averment in the affidavit that the plaint schedule property and the property claimed in the counter claim are one and the same. The balance of convenience is also in favour of the respondents. Even though Advocate Commissioner was appointed by the appellate court, there is nothing in the report of the Advocate Commissioner to identify the property of the appellant. Thus, there is no prima facie case also. 4. Heard the learned counsel appearing for the appellants as also the learned counsel appearing for the F.A.O.No.303 of 2008 4 respondents. 5. During the pendency of the suit, appellants had though filed a counter claim, did not seek any temporary injunction. After the dismissal of the counter claim and decreeing the suit, an appeal has been preferred by the appellants and their specific contention is that subsequent to the decree passed, an attempt is made to trespass into the property. The court below considered the materials on record and came to the conclusion that the appellants could not prove alleged trespass on the part of the respondents. Before us, the appellants could not establish that there was any attempt on the part of the respondents to trespass into the property. At any rate, after the dismissal of the interim injunction application as early as in 2008 and in the absence of any interim order passed by this Court, the status quo cannot be altered by any order to be passed in this appeal, nor are we satisfied that there are any materials warranting any such change in the status quo to be brought out. F.A.O.No.303 of 2008 5 In the circumstances, we find no merit in this appeal. Accordingly, the same is dismissed. The appellate court will dispose of the appeal, as expeditiously as possible, according to priority, untrammeled by the observation contained herein. P.R.RAMAN, JUDGE P.BHAVADASAN , JUDGE. nj.