IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 OP(C).No. 3227 of 2011(O) ---------------------------------- CMA.3/2011 of SUB COURT, VADAKARA OS.125/2011 of MUNSIFF COURT, NADAPURAM ..................................................... PETITIONER: -------------------- VIMALA, AGED 58 YEARS, D/O.OTHENAN VYDIAR, RESIDING AT KILIYATHULLATHIL, KUNNUMMAL AMSOM VATTOLI DESOM, VADAKARA. BY ADVS. SRI.V.V.SURENDRAN SRI.P.M.PADMANABHAN SRI.P.A.HARISH SMT.SANIKA.V.S. RESPONDENT(S): ------------------------- 1. E.ASOKAN, S/O.KUNHIRAMAN, RESIDING AT MANALIL HOUSE, KUNNUMMAL AMSOM VATTOLI DESOM, POST VATTOLI, KOZHIKODE-673 510. 2. MANALIL ASOKAN, S/O.CHATHU, KUNNUMMAL AMSOM, VATTOLI DESOM, POST VATTOLI, KOZHIKODE-673 510. 3. MANALIL CHANDRAN, S/O.SANKARAN, KUNNUMMAL AMSOM, VATTOLI DESOM, POST VATTOLI, KOZHIKODE-673 510. 4. THE KUNNUMMAL GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KAKKATTIL POST, KOZHIKODE-673 510. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU OP(C).No. 3227 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE PLAINT. EXHIBIT P2 : TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER. EXHIBIT P2(A) : TRUE COPY OF THE SKETCH PREPARED BY THE ADVOCATE COMMISSIONER. EXHIBIT P3 : TRUE COPY OF THE COUNTER STATEMENT FILED RESPONDENT 1 TO 3. EXHIBIT P4 : TRUE COPY OF THE ORDER OF THE LEARNED MUNSIFF. EXHIBIT P5 : TRUE COPY OF THE MEMORANDUM OF APPEAL. EXHIBIT P6 : TRUE COPY OF THE JUDGMENT OF THE LEARNED SUB JUDGE. RESPONDENTS' EXHIBITS : NIL //TRUE COPY/ P.A TO JUDGE STU THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3227 of 2011 --------------------------------------- Dated this 11th day of October, 2011 JUDGMENT Respondents 1 to 3 appear through counsel. Notice to the fourth respondent is dispensed with in view of the decision I propose to take in this proceeding. 2. Plaintiff in O.S.No.125 of 2011 of the Court of learned Munsiff, Nadapuram is aggrieved by the dismissal of I.A.No.459 of 2011 as confirmed by the learned Sub Judge, Vatakara in C.M.A.No.3 of 2011. Petitioner sued respondents 1 to 3 for a decree for prohibitory injunction against trespassing into the suit property and constructing road on the north and west of the said property by filling up the water channel. For a temporary relief in that way petitioner filed I.A.No.459 of 2011. It would appear that by the time the suit was filed, a portion of what is called the water channel on the western side was filled up (according to the petitioner), while according to the learned counsel for respondents 1 to 3 the water channel was not filled but, only the ground surface of that portion was levelled up to make it accessible to the local people including school going children (it is submitted that still, that place has a depth of about 6 feet). O.P(C).No.3227of 2011 -: 2 :- Respondents 1 to 3 denied the allegations and contended that they have a right of access along the north and west of the suit property and that the portion through which access is claimed does not form part of the property of petitioner. 3. The Advocate Commissioner inspected the property on 10.05.2011 and submitted Ext.P2, report and sketch. Advocate Commissioner reported about the drainage on the north and west of the suit property, that the drainage on the west is filled up upto a length of 40meters and that it is not simply a drainage but, it is a footpath used by the local people. The Advocate Commissioner reported that drainage on the north is not filled up and that footpath is formed in the northern drainage which has a width of about 40cms. The Advocate Commissioner further reported that mud wall on the western side of the suit property is constructed in a slopping position. Commissioner could not find any evidence of demolition or damage to that wall. The further observation of the Commissioner is that water flows from east to west through a metal pipe (shown in the sketch as towards the north-west of the suit property). Commissioner also noticed a temporary way proceeding towards north from the so called drainage on the western side and reaching the public road O.P(C).No.3227of 2011 -: 3 :- on the east. Learned Munsiff found that the allegation regarding attempt to trespass to the suit property is not correct, referred to the stand of the fourth respondent/local authority that if there is any violation of the provisions of the Panchayat Raj Act and the Rules under it, appropriate action will be taken in the matter against those concerned and dismissed I.A.No.459 of 2011 which the learned Sub Judge has confirmed by Ext.P6, judgment in C.M.A.No.3 of 2011. 4. Learned counsel for petitioner contended that at this stage it may not be possible to contend that there is no trespass into the western portion of the suit property which is a matter for the trial court to decide. It is also submitted by learned counsel that it was not proper for the learned Munsiff and the learned Sub Judge to find at this stage that it was not drainage on the north and west of the suit property since these are matters to be decided after recording evidence. Grievance of petitioner is that respondents 1 to 3 might trespass into the northern portion of the suit property for the purpose of filling up the water channel on the north of the suit property. 5. Learned counsel for respondents 1 to 3 contends that there are people residing on the western side of the drainage (or O.P(C).No.3227of 2011 -: 4 :- the footpath as the case may be) and the local people including school children are using the said portion for access to the public road and for the said purpose, the drainage (or the footpath as the case may be) is levelled up at the ground surface. It is also submitted by the learned counsel that the owner of property on the further north of the suit property has agreed to surrender some land adjoining the drainage on the northern side so that the said portion can be widened and made a cartable way for access to the public road on the further east. 6. On the question whether there is any alteration of the drainage (or the footpath as the case may be) it is not necessary for this Court to go into at this stage since it is open to the fourth respondent, panchayat to look into that matter and if found necessary to take appropriate action as provided under the law. I make it clear that either the order of the learned Munsiff as confirmed by the learned Sub Judge or this judgment shall not stand in the way of the local panchayat/fourth respondent, if it thinks fit to initiate appropriate action, if any and if warranted by law and circumstances in that regard. 7. Now the apprehension of petitioner is only as regards respondents 1 to 3 trespassing into the suit property towards its O.P(C).No.3227of 2011 -: 5 :- northern side. Prima facie, it appears to me that the drainage (or the footpath as the case may be) on the western and northern side shown in Ext.P2, sketch does not form part of the suit property. I make it clear, that also is a matter to be decided by the trial court having regard to the pleadings of the parties and the evidence on record and if it arises for a decision. Learned counsel for respondents 1 to 3 submit that respondents 1 to 3 will not trespass into the suit property (excluding the drainage or footpath, as the case may be) What is required is to record the submission of learned counsel for respondents 1 to 3 that they will not trespass into any portion of the suit property (excluding the disputed drainage or the footpath as the case may be). That submission of the learned counsel is recorded. Resultantly this original petition is disposed of as follows: (i) The undertaking made by the learned counsel on behalf of respondents 1 to 3 that they will not trespass into any portion of the suit property (excluding the drainage or the footpath as the case may be) on the west and north of the suit property until disposal of the suit is recorded. (ii) It is made clear that the order of the trial court as confirmed by the appellate court or this judgment will not stand in the way of the local panchayat/fourth respondent initiating O.P(C).No.3227of 2011 -: 6 :- appropriate action, if any and if warranted by the law and circumstances as regards the drainage (or footpath as the case may be). (iii) Trial court is directed to expedite its proceedings untrammelled by any observation contained in Ext.P4, order or Ext.P6, judgment or in this judgment. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-