IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 OP(C).No. 2059 of 2011(O) -------------------------------- CMA. NO.60/11 OF IST ADDL. DISTRICT COURT, TRICHUR O.S. NO.1066/11 OF PRL. MUNSIFF COURT, TRICHUR ....... PETITIONERS ---------------- 1. PAULSON, S/O. NIRAPPEL KURUVILA, PATTIKKAD DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. 2. VIJITHA PAULSON, W/O. PAULSON, PATTIKKAD DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. 3. ELIAKUTTY, W/O. NIRAPPEL KURUVILA, PATTIKKAD DESOM, PANANCHERY VILLAGE, THRISSUR TALUK. BY ADVS. SRI.V.V.ASOKAN SRI.P.P. RAMACHANDRAN RESPONDENT(S): -------------------- SUSY KISHOR, W/O.NIRAPPEL KISHOR SYRIAC, PATTIKKAD DESOM, PANANCHERY VILLAGE, THRISSUR TALUK - 680 652. R1 BY ADV. SRI.JIJO PAUL THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2059/2011 APPENDIX PETITIONER'S EXHIBITS: P1: EYE SKETCH SHOWING THE LIE OF THE PROPERTY. P2: COPY OF THE PLAINT IN O.S.1066/2011. P3: PHOTOGRAPHS SHOWING THE TRUE LIE OF THE PROPERTY P3(a):PHOTOGRAPHS SHOWING THE TRUE LIE OF THE PROPERTY P3(b):PHOTOGRAPHS SHOWING THE TRUE LIE OF THE PROPERTY P3(c):PHOTOGRAPHS SHOWING THE TRUE LIE OF THE PROPERTY P3(d):PHOTOGRAPHS SHOWING THE TRUE LIE OF THE PROPERTY P4: COPY OF I.A. NO.3658/2011 IN O.S.1066/2011. P4(a):COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS (PETITIONERS) (I.A. NO.3658/2011) P5: COPY OF THE REPORT AND SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER. P6: COPY OF THE ORDER OF THE MUNSIFF COURT, TRICHUR IN I.A. NO.2658/2011 IN O.S. NO.1066/2011. P7: COPY OF C.M. APPEAL NO.60/2011 FIRST ADDITIONAL DISTRICT COURT, TRICHUR. P7(a):COPY OF I.A. NO.1636/2011 IN CMA 60/2011 FIRST ADDITIONAL DISTRICT COURT, TRICHUR. P8: COPY OF THE COMMISSIONER'S REPORT AND SKETCH. P9: COPY OF THE INTERIM ORDER PASSED BY THE FIRST ADDITIONAL DISTRICT COURT, TRICHUR IN I.A. NO.1636/2011 IN CMA 60/2011. P9(a):COPY OF THE INTERIM ORDER PASSED BY THE FIRST ADDITIONAL DISTRICT COURT, TRICHUR IN I.A. NO.1636/2011 IN CMA 60/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2059 of 2011 --------------------------------------- Dated this 12th day of July, 2011 JUDGMENT Defendants in O.S.No.1066 of 2011 of the Court of learned Principal Munsiff, Thrissur and appellants in C.M.A.No.60 of 2011 of the Court of learned Additional District Judge, Thrissur are the petitioners before me challenging Exts.P9 and P9(a), orders dated 23.05.2011 and 25.05.2011 on I.A.No.1636 of 2011 in C.M.A.No.60 of 2011. 2. Parties are closely related. Respondent/plaintiff claimed absolute right and possession of plaint A schedule items (3, in number) and right of access through plaint B schedule over which respondent claimed either a right of easement by grant or necessity (as per pleading). It is also the case of respondent that herself and predecessors-in-interest were using the way for access to plaint A schedule and while so, as agreed by both sides the way was shifted to the present site (described as plaint B schedule). It is while so, that dispute arose between the parties concerning right, enjoyment and possession of the respective items. Respondent wanted a decree for prohibitory injunction against petitioners trespassing into plaint A schedule or causing O.P(C).No.2059 of 2011 -: 2 :- hindrance to her using plaint B schedule for access to the plaint A schedule. Learned Munsiff granted an order of temporary injunction which petitioners challenged in C.M.A.No.60 of 2011 and moved I.A.No.1636 of 2011 for stay of operation of the order. Learned Additional District Judge passed Ext.P9, order dated 23.05.2011 directing parties to maintain status quo as on the date of filing of the appeal, till 25.05.2011. Exts.P9(a), order was passed on the same application on 25.05.2011 directing that Ext.P9, order dated 23.05.2011 is modified in that parties are directed to maintain status quo as on date of the appeal, petitioners are restrained from entering the plaint A schedule (1.50acres) and respondent was permitted to make use of plaint B schedule way without obstruction. Exts.P9 and P9(a), orders are under challenge at the instance of petitioners/defendants. 3. Learned counsel for petitioners has contended that respondent has no right, title, interest or possession of the entire plaint A schedule items and even as regards plaint B schedule, learned Munsiff has proceeded on a wrong assumption of the right of user of respondent as if it is admitted by petitioners while petitioners, in their counter denied that respondent has any right over plaint B schedule. It is also the contention of petitioners that respondent has other means of access to that part of the property O.P(C).No.2059 of 2011 -: 3 :- belonging to her and forming part of plaint A schedule. Further argument is that even as per the reports submitted by the Advocate Commissioner, it is clear that petitioners are engaged in running a nursery (Nirappel Gardens) in nut mug seedlings and Exts.P9 and P9(a), orders passed by the learned Additional District Judge affected right of petitioners to deal with the nut mug seedlings. It is pointed out that rainy season is the season for sale of nut mug seedlings and if that is prevented petitioners will be put to heavy loss and difficulty. Ext.P9 and P9(a), orders even prevent petitioners from watering the nut mug seedlings. Learned counsel has offered that if petitioners are permitted to sell the nut mug seedlings subject to the result of the suit, they are prepared to deposit `.75,000/- in the trial court as security. 4. Learned counsel for respondent would vehemently contend that the orders passed by learned Additional District Judge do nto call for interference. It is pointed out that respondent has shown a prima facie case so far as her right of access through plaint B schedule and right and possession of plaint A schedule is concerned. 5. Since the matter is under consideration in the C.M appeal before learned Additional District Judge it is not necessary for me to go into contentious issues. What is required is to make O.P(C).No.2059 of 2011 -: 4 :- only some arrangement for the time being so that as petitioners claimed, the nut mug seedlings do not get dried up and lost and it is profitably put to use. The reports of the Advocate Commissioner referred to me show that at the time of the first visit, Commissioner had seen a nylon net extending east west through plaint A schedule items with plantain planted on the northern side and nut mug seedlings kept under the name and style “Nirappel Gardens” on the southern side. But at the time of second inspection Commissioner could not see that nylon net, instead at that place Commissioner found a plastic twain and arecanut rafters, extending east west with plantain planted on the northern side and nut mug seedlings kept in the nursery on the southern side. The question whether the nursery belonged to the petitioners as claimed by them or it is the property of respondent being part of plaint A schedule items are matters which the trial court has to decide. Having regard to the circumstances above stated and having heard learned counsel on both sides I am inclined to think that petitioners could be permitted to deal with nut mug seedlings in the nursery on the southern side of the plastic twain and the arecanut rafters. But, that can only be subject to conditions and subject to the result of the suit. Having regard to the extent of the nut mug seedlings O.P(C).No.2059 of 2011 -: 5 :- involved, petitioners have to deposit a sum of `.1,00,000/- in the trial court which shall be subject to the result of the suit. Resultantly this original petition is disposed of in the following lines: (i) Petitioners are permitted to maintain and sell the nut mug seedlings kept in plaint A schedule items towards southern side of the plastic twain and arecanut rafters subject to the following conditions: (a) Petitioners shall deposit `.1,00,000/- (Rupees One Lakh Only) in the trial court which shall be subject to the result of the suit. (b) Petitioners shall maintain proper accounts for maintenance and sale of nut mug seedlings and shall file, once in three months in the trial court beginning from 01.08.2010 statement of account for such maintenance and sale of seedlings together with carbon copy of receipts for such sale. (ii) The question as to which of the contestants the amount in deposit less expenses incurred for maintenance of the nut mug seedlings should go, shall depend on the result of the suit. (iii) Learned Additional District Judge shall grant formal permission to the petitioners to do as above after obtaining report from the Advocate Commissioner (if possible, the same Advocate Commissioner) as to the number of nut mug seedlings now found towards southern side of the plastic twain and arecanut rafters. O.P(C).No.2059 of 2011 -: 6 :- (iv) It is made clear that the above directions are only with respect to the disputed portion of plaint A schedule items situated on the south of the plastic twain and arecanut rafters. On getting report of the Advocate Commissioner regarding number of nut mug seedlings available, learned Additional District Judge shall grant formal permission to the petitioners to deal with the same as above stated and on such order being passed, Exts.P9 and P9(a), orders will stand modified to that extent. In other respects I do not find reason to interfere with Exts.P9 and P9(a), orders but I make it clear that I have not expressed any opinion either way regarding the entitlement of respondent to the injunction as prayed for which learned Additional District Judge has to decide while deciding C.M.A.No.60 of 2011. (THOMAS P JOSEPH, JUDGE) Sbna/-