IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WP(C).No. 29641 of 2009(O) -------------------------- I.A.NO.2171/09 IN OS.280/2009 of MUNSIFF COURT, CHITTUR .................... PETITIONER(S): ------------------------ 1. GOPALAN, SON OF VELAYUDHAN, RESIDING AT KALLUKUTHYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. 2. RAMACHANDRAN, SON OF VELAYUDHAN, RESIDING AT KALUKUTHYKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK,PALAKKAD DISTRICT. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): ---------------------------- 1. ANIL KUMAR, SON OF ARUMUGAN, RESIDING AT KALLUKUTHIYAKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. 2. SUB INSPECTOR OF POLICE, KOLLENGODE POLICE STATION. *ADDL.R3 IMPLEADED: R3. KESAVAN, S/O.VELAYUDHAN, RESIDING AT KALLUKUTHIYAKALAM, KIZHAKKETHARA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. (*ADDL.R3 IS IMPLEADED AS PER ORDER DTD. 21/01/2010 IN I.A.NO.298/09) R1 BY ADVS. SRI.SAJAN VARGHEESE K., SRI.LIJU. M.P. R3 BY ADV. SRI.D.KRISHNA PRASAD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29641/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMMON ORDER PASSED IN I.A.1745 OF 2009 IN O.S.272 OF 2009 AND I.A.NO.1786 OF 2009 IN O.S.280 OF 2009 DTD. 3/08/2009. P2: COPY OF THE ORDER PASSED IN I.A.NO.2171 OF 2009 DTD.28/08/2009 OF THE MUNSIFF COURT, CHITTUR. P3: COPY OF THE PLAN IN O.S.NO.280 OF 2009 FILED BY THE ADVOCATE COMMISSIONER DTD. 16/07/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 29641 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March, 2010. JUDGMENT In this writ petition under Article 227 of the Constitution of India, the petitioners assail Ext.P2 order whereby police aid has been given to the petitioner in I.A. 1786 of 2009 for implementing the order therein. 2. The respondents herein instituted O.S. 280 of 2009 seeking certain reliefs. The petitioners herein are the defendants in the suit. In fact the suit was one for prohibitory injunction restraining the defendants from interfering with the right of the plaintiffs to take water from the well, which is shown as item No.2, to the paddy fields belonging to the plaintiffs. There was another suit as O.S. 272 of 2009 filed by the petitioners against the respondents herein. In both the suits, interlocutory applications were filed by the respective parties, namely WPC. 29641/2009. 2 I.A.1745 of 2009 in O.S. 272 of 2009 and I.A. 1786 of 2009 in O.S. 280 of 2009. Those applications were disposed of by a common order dated 3.8.2009. Both the petitions were partly allowed. The plaintiff in O.S. 280 of 2009 was allowed to draw water from item No.2 pond shown in the sketch prepared by the Commissioner and the plaintiffs in O.S. 272 of 2009 was granted permission to de-silt the same pond. This court is given to understand that the aggrieved parties have preferred C.M.A. before the court concerned. 3. Subsequent to the filing of the C.M.A., it appears that the petitioners would say that without any bonafides, the respondents filed a petition before the court below seeking police aid and that was granted. 4. Learned counsel appearing for the petitioners points out that the order which is sought to be implemented has been challenged in appeal and while the appeal was pending it was not proper for the court below to have police aid granted. WPC. 29641/2009. 3 5. Learned counsel appearing for the respondents on the other hand pointed out that no stay was obtained from the appellate court and therefore the order passed had to be implemented. While the respondents tried to take water as per the terms of the order passed by the Munsiff's court, they were prevented from doing so. So they have to seek police aid and they filed I.A. 2171 of 2009 and that has been allowed. The order is only in aid to implement the order already passed and the petitioners can have no grievance regarding the same. 6. It is rather unfortunate that the brothers should be at logger heads with regard to the drawing of water. The sketch prepared by the Commission in O.S. 280 of 2009 was made available for perusal. It needs to be noticed that the order of the Munsiff's court is assailed before the appellate court in C.M.A. pending before the District Court, Palakkad against the order in I.A. Nos. 1745 of 2009 and 1786 of 2009 in O.S. Nos. 272 of 2009 and 280 of 2009. Under such circumstances it may not be appropriate for this court to WPC. 29641/2009. 4 enter into a finding regarding the matters which are subject matter of the appeal. The present need is only to make an interim arrangement till the appeals are disposed of. 7. As per the sketch made available, there are three ponds available to the parties. Item No.1 is on the western side of the cart road and the other two ponds are on the eastern side. The eastern ponds are shown as item Nos. 2 and 3 and the western pond is shown item No.1. 8. It is not in dispute that the plaintiffs in O.S. 280 of 2009 is holding paddy fields near item No.1 pond. The sketch also shows that water is being drawn to those fields from item No.2. Therefore the petitioners herein, who are the defendants in O.S. 280 of 2008 cannot say that water was not being drawn or cannot be drawn from item No.2 pond, which is situated in their property. 9. At the time of hearing of the petition, the only prayer made was that there may be a direction to dispose of the C.M.A. pending and till then, the interim order may be made without adversely affecting affecting the rights of the WPC. 29641/2009. 5 parties. The parties agreed to the following terms and conditions: i) The plaintiffs in O.S. 280 of 2008 will initially draw water from item No.1 pond and if there is no sufficient water in that pond, they can draw water from item No.2 pond as was done before. ii) Respondents in I.A. 1786 of 2009 in O.S. 280 of 2009 will not cause any hindrance to the drawing of water by the petitioners in case they need more water, after exhausting water in item No.1 pond shown in the sketch. iii) The expenses that may be incurred in installing the motor, pump and pipes for drawing water from item No.1 will be shared equally by the parties as agreed to and the actual costs that each person will have to bear will be determined at the time of final disposal of the suit. Accepting the above conditions and also with a direction to the First Additional District Court, Palakkad to dispose of the C.M.A. pending against the orders in I.A. 1745 of 2009 and I.A. 1786 of 2009, this petition is disposed WPC. 29641/2009. 6 of. The implementation of the impugned order will be subject to the result of the order in C.M.A. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.