IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 OP(C).No. 1359 of 2011(O) ------------------------- OS.403/2010 MUNSIFF COURT,ALAPPUZHA .................... PETITIONER (S): -------------------- M.REGHUNATH, S/O.MADHAVAN, AGRICULTURIST AGED 64, RESIDING AT MANGALAPPURATH (SANGEETHA) PUNNAPRA VILLAGE, AMABALAPPUZHA TALUK ALAPPUZHA DISTRICT. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): --------------- M.RAJKUMAR, S/O.MADHAVAN, AGED 43 MANGALATH, WARD NO.9 PUNNAPRA GRAMA PANCHAYATH PUNNAPRA VILLAGE, AMABALAPPUZHA TALUK PUNNAPRA PO ALAPPUZHA 688 001. ADV. SRI.C.A.CHACKO SRI.P.KRISHNA KUMAR (ALAPPUZHA) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1359/11 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE PLAINT DATED 2.6.2010 IN OS 403/2010 ON THE FILE OF PRINCIPAL MUNSIFF, ALAPPUZHA. EXT.P2: COPY OF IA 1843/2010 DATED 2.6.2010 FOR INTERIM INJUNCTION. EXT.P3: COPY OF THE ORDER DATED 10.6.2010 IN IA NO.1843 OF 2010 EXT.P4: COPY OF THE WRITTEN STATEMENT DATED 1.1.2011 FILED BY THE RESPONDENT. EXT.P5: COPY OF THE COMMISSIONER'S REPORT DATED 20.11.2010 SUBMITTED BY ADVOCATE COMMISSIONER EXT.P6: COPY OF IA 984/2010 DATED 10.3.2011 FOR APPOINTING A COMMISSIONER RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1359 of 2011 --------------------------------------- Dated this the 6th day of April, 2011 JUDGMENT The petitioner and the respondent are brothers. The petitioner instituted O.S.No.403 of 2010 on the file of the court of the Munsiff of Alappuzha against the respondent for a permanent prohibitory injunction restraining him from trespassing upon the plaint schedule property or from preventing the plaintiff from carrying out agricultural operations therein or in any way interfering with the peaceful possession and enjoyment of the property by the plaintiff. Though an interim order of injunction was granted, it was only for a short duration. 2. According to the plaintiff, the property belonged to his father and he got the property as per a gift deed executed by the father. The case of the defendant is that he O.P.(C) No.1359/2011 2 has perfected title to the property by adverse possession. 3. The land involved in the suit is 5 acres of paddy land. During the last agricultural season, on an application filed by the plaintiff, a Commissioner was appointed to supervise the harvest of the paddy crops and to deposit the surplus amount in court. Accordingly, the Commissioner deposited a sum of ` 78,750.50 before the trial court. 4. The petitioner filed I.A.No.984 of 2011 dated 10th March, 2011 (Exhibit P6), to appoint an Advocate Commissioner for the purpose of harvesting the crops and to deposit the proceeds of the same in court. Learned counsel for the petitioner submitted that the application was heard on 19.3.2011 and it was posted for orders to 25.3.2011. Again, it was adjourned to 1.4.2011. On 1.4.2011, there was no sitting and therefore, the case was adjourned. O.P.(C) No.1359/2011 3 5. In these circumstances, the plaintiff filed this Original Petition for appointing an Advocate Commissioner to harvest the crops and also to issue a direction to the learned Munsiff to dispose of Exhibit P6 application. 6. According to the petitioner, he has undertaken the paddy cultivation in the disputed land. According to the respondent, he has cultivated the land. The learned counsel for the respondent submitted that the harvest of the crops was commenced on 4.4.2011 and it was completed on 5.4.2011. In view of the submission, no useful purpose would be served by directing the court below to dispose of I.A.No.984 of 2011. It is not also feasible to appoint a Commissioner to supervise the harvest and to deposit the proceeds thereof in court. It becomes necessary to consider any other feasible method to protect the interests of both parties. The respondent is prepared to deposit the same amount as was deposited by him for the last crop. The learned counsel for O.P.(C) No.1359/2011 4 the petitioner submitted that the price of the paddy has increased and that a better crop is available during the present agricultural season. Taking into account the submissions made by either side and also the other relevant aspects, I am of the view that it would be just and proper to direct the respondent to deposit a sum of ` 80,000/- before the trial court on or before 31.5.2011. On such deposit, the trial court shall consider as to what further orders should be passed in respect of the amount. The direction to deposit ` 80,000/- shall be treated as an executable order and if the respondent fails to deposit the amount, the petitioner would be entitled to proceed in execution for realisation of the amount. 7. The dispute between the parties continues. It is necessary to make an acceptable solution for carrying out agricultural operations in the land and for harvest of the crops. The court below shall pass appropriate orders for O.P.(C) No.1359/2011 5 auctioning the right to cultivate and the right to harvest the crops between the parties, well ahead of commencement of the agricultural operations, on an application filed by either party. The auction and taking of usufructs will be subject to the result of the suit. The trial court shall expedite the trial of the suit. The Original Petition is disposed of as above. K.T.SANKARAN JUDGE csl