High Court Kerala High Court

Nabeesumma vs Pathumma on 22 October, 2010

Kerala High Court
Nabeesumma vs Pathumma on 22 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 340 of 2010()


1. NABEESUMMA,W/O.IBRAHIM,KADUVANGATTIL
                      ...  Petitioner

                        Vs



1. PATHUMMA,W/O.LATE MUHAMMEDKUTTY,
                       ...       Respondent

2. NOORJAHAN,D/O.MUHAMMEDKUTTY,

3. JAMEELA,MUHAMMEDKUTTY,

4. RASHEEDA,MUHAMMEDKUTTY,

5. SAINUDHEEN,S/O.LATE AMEER,

                For Petitioner  :SRI.V.K.BALACHANDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :22/10/2010

 O R D E R

THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.

————————————————————————

FAO No.340 of 2010

————————————————————————

Dated 22nd October 2010

Judgment

Thottathil.B.Radhakrishnan, J.

One among the two plaintiffs in a suit for

partition is the appellant. She challenges the order of the

court below, dismissing an application for temporary

injunction to restrain the defendants from alienating the suit

property or committing any act of waste or installing any

mobile tower in the suit property.

2. The suit property originally belonged to

Kunuthumma. She had two children – Khadeejumma and

Muhammedkutty. In defence to the application, the

defendants produced Ext.B1 registered release deed by

Khadeejumma in favour of some among the defendants.

On the basis of this registered release deed, the court

below took the view that the plaintiffs do not have a prima

facie case to sustain the order of temporary injunction.

FAO No.340/10 2

Though the learned counsel for the appellant states that his

client had filed a replication, essentially challenging Ext.B1

as a fraudulent one and attributing that Khadeejumma did

not have the mental capacity to execute any such

document, we are of the view that on the face of Ext.B1

registered document, the court below was justified in taking

the view that prima facie, the order of temporary injunction

cannot be granted. Obviously, if the plaintiffs succeed at

trial ultimately, any transaction pending suit would

essentially be defeated by lis pendens. Under such

circumstances, we are of the view that irreparable injury is

not demonstrated if temporary injunction is refused. The

contesting defendants have a case that on the strength of

Ext.B1, they have absolute right to property and they have

entered into an agreement under which they have

permitted a mobile telephone operator to install a tower.

The balance of convenience is not in favour of restraining

the defendants from giving effect to that agreement in

accordance with law.

FAO No.340/10 3

3. For the aforesaid reasons, we do not find any

ground to entertain this appeal and the same is accordingly

dismissed, clarifying that the views expressed in the

impugned order and also the observations in this Judgment

would not stand in the way of the parties at trial and the

court below would ultimately decide the suit, untrammeled

by anything stated herein above or in the impugned order.

Thottathil.B.Radhakrishnan,
Judge.

P.Bhavadasan,
Judge

sta

FAO No.340/10 4