IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 FAO.No. 312 of 2010() ----------------------------- AGAINST THE ORDER DATED 20/08/2010 IN IA.5823/2010 IN OS.1182/2009 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- GHOSH.T.P.,AGED 49 YEARS,S/O.T.K.PARAMU, RESIDING AT THINNAKKAKATH HOUSE,28/440-A,CLUB ROAD GIRI NAGAR, KOCHI-20. REP. BY HIS P/A.HOLDER, HIS BROTHER MR.KANAKAN.T.P., AGED 45 YEARS, S/O. T.K.PARAMU,RESIDING AT THINNAKKAKATH HOUSE, THRIPUNITHURA SOUTH, THRIPUNITHURA,EKM-682301. BY ADVS. SRI.SHAIJAN C.GEORGE SRI.JOHN T.ABRAHAM SMT.S.REKHA KUMARI SMT.SAJITHA GEORGE SRI.ABHISHEK KURIAN RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. SMT.P.MEENAKSHY, AGED 73 YEARS, D/O.PUTHENKALATHIL AMMUKUTTY AMMA @ SEETHA AND W/O. LATE VATTEKKAT MADHAVAN NAIR, RESIDING AT 'MAHALAKSHMY', PATTURAICKAL, P.O.THIRUVAMBADY, THRISSUR-680022. 2. SMT.M.MAYA, AGED 49 YEARS, D/O. P.MEENAKSHY AND VATTEKKAT MADHAVAN NAIR, RESIDING AT 'MAHALAKSHMY', PATTURAICKAL, P.O.THIRUVAMBADY, THRISSUR-680022. 3. SMT. M.MADHAVI, AGED 46 YEARS, D/O. P.MEENAKSHY AND VATTEKKAT MADHAVAN NAIR, RESIDING AT 'MAHALAKSHMY', PATTURAICKAL, P.O.THIRUVAMBADY, THRISSUR-680022. F.A.O. NO.312/2010 4. SMT. M.MALINI, AGED 42 YEARS, D/O. P.MEENAKSHY AND VATTEKKAT MADHAVAN NAIR, RESIDING AT 'MAHALAKSHMY',PATTURAICKAL, P.O.THIRUVAMBADY, THRISSUR-680022. 5. M/S. MAYA REALTORS PRIVATE LIMITED, MAHALAKSHMI, PATTURAICKAL, THRISSUR, REP. BY ITS MANAGING DIRECTOR SRI.V.RAMAKRISHNAN, AGED 62 YEARS, S/O. APPUNNY MENON, RESIDING AT MAHALAKSHMY GREEN PARK, P.O.,PERINGAVU, THRISSUR. 6. SMT. BHAVANI, AGED 76 YEARS, W/O. BALAN, RESIDING AT FLAT NO.802, 8TH FLOOR, MAYA HEIGHTS, PATTURAICKAL, P.O.THIRUVAMBADY, THRISSUR-680022. R6 BY ADVS. SRI.SANTHEEP ANKARATH, SMT.M.SINDHU THANKAM. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 312 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of December, 2010. JUDGMENT Thottathil B. Radhakrishnan, J, Service complete. We have heard learned counsel appearing for the parties. 2. This appeal is by the plaintiff. He says that he purchased a flat. However, ultimately, the sixth defendant/sixth respondent is found to be in possession. He says that such possession of the sixth defendant is unauthorised. On the strength of the alleged title with the plaintiff, he sued for a mandatory injunction directing the sixth defendant to vacate. He also sought a temporary mandatory injunction on the same lines. 3. Among other things, the court below found that the suit for mandatory injunction would not lie, and the plaintiff may file a suit for recovery of possession on the strength of title. FAO.312/2010. 2 4. We note that the sixth respondent's plea is that the plaintiff and the Managing Director of the fifth respondent builder had taken money and had put her in possession. Even if this is ultimately proved to be false, or not proved by the sixth defendant, yet, she is not holding possession under any transaction which could be the foundation for a suit for mandatory inunction. Therefore, the observation of the court below in the impugned order that the suit for mandatory injunction may not be maintainable is not unjustified. 5. In the aforesaid circumstances, after arguing the matter for quite sometime, learned counsel for the appellant says that his client may be given some time to apply for amendment of the plaint and seek recovery of possession on the strength of title and to pay court fee accordingly. If such an application is filed, the court below will consider the same and issue orders on merits, at the earliest. If any such amendment is allowed, the court below will expedite the final decision in the suit, having regard to the issues involved. It is also clarified that nothing contained in the impugned FAO.312/2010. 3 order or in this judgment will bind the parties at trial and disposal of the suit on merits. FAO is ordered accordingly. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.