IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No. 13038 of 2007(B) -------------------------- CMA.4/2006 of THE DISTRICT COURT,KOLLAM IA.NO.1399/2001 IN OS.228/1996 of MUN-MAGI COURT, PARAVOOR .................... PETITIONERS: --------------- 1. THANKAPPAN, ROSE VILLA VEEDU, THAZHAM CHERI, CHATHANNUR, KOLLAM-691 572. 2. SAROJAM, DO. DO. BY ADV. SRI.ALEX N.MATHEW (KOLLAM) SRI.H.RAMANAN SRI.JAMES JOSE RESPONDENT(S): --------------- 1. HOUVA BEEVI, NOUSHAD MANZIL, KIZHAKKUM KARA, MEENADU VILLAGE, KOLLAM. 2. NOUSHAD, DO. DO. 3. AMARSHAD, DO. DO. 4. SUJAD SHAH, DO. DO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).O.13038/2007 APPENDIX\ PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.228/96 OF MUSIFF'S COURT, PARAVUR DTD. 14/10/96. EXT.P2 TRUE COPY OF THE TEMPORARY INJUNCTION APPLICATION I.A.NO.977/96 FILED BY IST PLAINTIFF DTD. 14/10/96. EXTP3 TRUE COPY OF THE ORDER IN I.A.977/96 DTD. 15/10/96. EXT.P4 TRUE COPY OF THE I.A.1399/01 FILED BY IST PLAINTIFF AGAINST THE DEFENDANTS (RESPNDENTS HEREIN) DTD. 29/10/01. EXT.P5 TRUE COPY OF THE OBJECTION IN I.A.NO.1399/01 FILED BY POWER OF ATTORNEY HOLDER OF 9TH DEFENDANT DTD. EXT.P6 TRUE COPY OF THE COMMISSION REPORT DTD. 8/11/96. EXT.P7 TRUE COPY OF THE COMMISSION REPORT DTD. 13/8/98. EXT.P8 TRUE COPY OF THE COMMISSION REPORT & MAHAZAR DTD. 12/9/02. EXT.P9 TRUE COPY OF THE ORDER IN I.A.1399/01 IN OS.228/96 DTD. 3/12/05 EXT.P10TRUE COPY OF THE JUDGMENT IN CMA.4/2006 DTD. 30/6/06. EXT.P11TRUE COPY OF THE COMMISSION REPORT & MAHAZAR DTD. 20/8/06. EXT.P12 TRUE COPY OF THE PLAN PREPARED BY TALUK SURVEYOR DTD. 18/09/06 EXT.P13 TRUE COPY OF THE RESURVEY PLAN DTD. 23/12/04. EXT.P4 TRUE COPY OF THE RESURVEY PLAN DTD. 23/12/04 HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.13038 OF 2007 ---------------------------- DATED THIS THE 21ST DAY OF JANUARY, 2009 JUDGMENT Petitioners are plaintiffs in O.S.No. 228/96 on the file of the Munsiff's Court, Paravur and the appellants in C.M.A.NO.4/2006 before the District Court, Kollam. The suit was filed for declaration of title over B schedule property subject to the right of way of the lst defendant and for other reliefs. The prayer in the in the interlocutory application is to restrain the defendants 1 to 3 from committing anything in ;B schedule in such a way so as to impair the rights of the plaintiffs over it or changing the nature, lie and use of it till the disposal of the suit. The Munsiff's Court, Paravur passed an order of interim injunction as prayed for. It is the petitioners' grievance that Ext.P3 order of injunction was violated by defendants 2 and 3. Ext.P4 is the petition for prosecution the said defendants for violation of Ext.P3 order. Before the trial court Exts.C1, C1(a), C1(b), C2, C2(a), C2(b), C3, -2- CRP.No.13038/2007 C3(a) and C3(b) Commission reports, mahazars and plans were produced. Plaintiff was examined as PW-1 and one of the Advocate Commissioner as PW-2. 2. The contention of the petitioners is that construction of the compound wall was made subsequent to the suit in such a way encroaching a portion of the B schedule property and is in violation of the order of injunction passed by the Munsiff's Court. The trial court without examining the real grievance raised by the plaintiffs, dismissed the application accepting the contention raised by the contesting defendants. In the appeal against the said order the District Court by Ext.P10 judgment observed that technically one can say that though there can be an infringement, the spirit of the injunction order is that the character and lie of the pathway shall not be changed. So also its use by the plaintiff. There is absolutely no materials to show that any of the acts mentioned above have been done. The Appellate Court therefore confirmed the findings of the trial -3- CRP.No.13038/2007 court. 3. Learned counsel for the petitioners draw my attention to Ext.P11 report of the Commissioner. It is submitted that by increasing the height and width of the compound wall, a portion of the plaint B schedule property was reduced and therefore the character and lie of the pathway have been changed. The enquiry should have been focused and limited to the question whether there is any construction made by the said defendants by which any portion of the property and possessed by the plaintiff is reduced. Admittedly, they have increased the height of the compound wall which can also be termed as changing the nature, lie and character of the plaint B schedule property. Therefore, neither the trial court nor the appellate court had examined the violation petition. Exts.P9 and P10 are set aside. The matter shall be enquired into on the basis of the observations made above and if it is found that the defendants are deliberately violated the order of injunction, the -4- CRP.No.13038/2007 court shall pass appropriate orders pinning them with penal action for violation of the injunction order. The trial court shall take a decision in the matter within a period of four months from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -5- CRP.No.13038/2007