IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 Crl.Rev.Pet.No. 724 of 2008() ----------------------------- CRRP.57/2007 of SESSIONS COURT, ERNAKULAM .................... REVN. PETITIONER: PETITIONER/1ST RESPONDENT ------------------------------------------- BALAKRISHNAN NAIR, SANKARA MANGALATHU, VELLOORKKUNNAM VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.RAJESH NAIR RESPONDENTS: PETITIONER AND STATE --------------------------------- 1. MANI RATHEESH, MANGALATHU HOUSE, VELLOORKKUNNAM VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR SRI.T.RAJESH FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ````````````````` Crl.R.P. NO. 724 of 2008 ````````````````` Dated: 26-05-2008 O R D E R Heard both sides. 2. The revision petitioner was the counter petitioner in proceedings before the Sub Divisional Magistrate, Moovattupuzha registered as M.C. 30 of 2005 under Sec. 138 of Cr.P.C. alleging that the jack tree standing in the property of the revision petitioner and located towards the boundary demarcating the said property from the adjacent property of the first respondent is causing nuisance by the branches falling over the property of the first respondent and leaves contaminating the drinking water of the first respondent and jack fruits falling and causing damage to the property of the first respondent herein. As per the preliminary order dated 25-10-2005 the Sub Divisional Magistrate directed the revision petitioner to show cause as to why the jack tree in question should not be cut and removed and why the preliminary order should not be made absolute. The revision petitioner appeared before the Sub Divisional Magistrate and filed his objections. Thereafter, the Sub Divisional Crl.R.P. 724 of 2008 -:2:- Magistrate after inquiry passed Annexure B final order dated 6- 10-2006 making absolute the preliminary order dated 25-10-2005 but directing the revision petitioner to cut and remove only the branches of the jack tree leaning towards the residential building of the first respondent herein . The first respondent challenged the said order before the Sessions Court, Ernakulam by filing Crl.R.P. No.57 of 2007. As per Annexure D order dated 12-02-2008 the Sessions Court observed that the Sub divisional Magistrate was not right in directing the first respondent herein to cut and remove the branches of the jack tree by purportedly making the preliminary order absolute since the preliminary order had tentatively directed the first respondent to cut and remove the jack tree itself. The learned Sessions Judge, accordingly, remanded the case back to the Sub divisional Magistrate with a direction to pass final order in terms of the preliminary order. 3. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- Even in Annexure A complaint lodged by the first respondent herein before the sub Divisional Magistrate he had no complaint that the jack tree as such was causing any nuisance to him. His grievance was that the leaves and branches of the jack tree were Crl.R.P. 724 of 2008 -:3:- causing nuisance to the adjacent property belonging to him . Therefore the Sub Divisional Magistrate was justified in directing the revision petitioner to cut only the overhanging branches of the jack tree. 4. I cannot agree. In Annexure A complaint itself there is a grievance that the compound wall of the first respondent has developed cracks and is about to fall. It was admitted before me that pending the proceedings the above wall has fallen down. This shows that the apprehension of the first respondent as expressed in Annexure A complaint had become as reality. Hence, it cannot be said that the nuisance was only in the form of leaves and branches of the tree falling in the adjacent property of the first respondent. The learned Sessions Judge was perfectly right in reaching the conclusion as indicated above. I, therefore, do not find any good reason to interfere with the remand order passed by the Sessions Court directing the passing of a final order in accordance with the conditional order passed by the Sub Divisional Magistrate and also in accordance with the factual position available from the evidence on record. This Revision is accordingly dismissed. V.Ramkumar, Judge. Crl.R.P. 724 of 2008 -:4:- ani.