IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 FAO.No. 17 of 2008() -------------------- AGAINST THE ORDER DATED 31/10/2007 IN IA 1023/2007 IN OS.351/2007 of SUB COURT, PERUMBAVOOR .................... APPELLANTS/PETITIONERS/PLAINTIFFS: ----------- 1. BHASKARAN, AGED 54, S/O.RAMAN, RESIDING AT KANJIRAVELIL HOUSE, PERINGALA P.O., PINARMUNDA, PIN. 683 565, KUNNATHUNADU VILLAGE, KUNNATHUNADE TALUK, ERNAKULAM DISTRICT. 2. BALAN, AGED 52, S/O.RAMAN, -DO- -DO- 3. USHA, AGED 49, W/O.BHASKARAN, -D0- -DO- BY ADV. SRI.K.C.ELDHO SRI.JIJO THOMAS RESPONDENTS: ----------- 1. PERIYAR VALLEY IRRIGATION PROJECT, (HEREINAFTER REFERRED TO AS PVIP), OFFICE OF THE PVIP, SUB DIVISION NO.II, PERUMBAVOOR, ERNAKULAM, REPRESENTED BY THE EXECUTIVE ENGINEER. 2. THE ASSISTANT EXECUTIVE ENGINEER, PVIP, OFFICE OF THE PVIP, PERUMBAVOOR, SUB DIVISION NO.II, PERUMBAVOOR, ERNAKULAM DISTRICT. 3. C.I.SULAIMAN, AGED 52 YEARS, ' S/O.ISMAIL, CHELLIPADATH (PEEDIKAYIL)HOUSE, PINARMUNDA,N PERINGALA P.O., KUNNATHUNADE VILLAGE, KUNNATHUNADE TALUK, ERNAKULAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD, KOCHI-30. R3 BY ADV. SRI.PAUL K.VARGHESE R1, R2 AND R4 BY GOVT.PLEADER SRI LAKSHMINARAYANAN THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 18/01/2008 ALONG WITH CAVEAT O.P.NO.858/07, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- F.A.O.NO.17 OF 2008 & CAVEAT O.P.NO.858 OF 2007 -------------------------------- Dated this the 18sth day of January, 2008 JUDGMENT Raman, J. This is an appeal against the order dismissing the application for injunction filed as I.A.No.1023/07 in O.S.No.351/07. Appellants are the plaintiffs in the suit. The suit is one for fixation of boundary. Along with the suit the appellants/petitioners filed the said application seeking for an injunction restraining the 3rd respondent from trespassing into the petitioners' property. The 3rd respondent has obtained permission from the Periyar Valley Irrigation Project for construction of a side protection wall on the side of the canal situated on the southern side of the plaint schedule property. The contention of the petitioners/appellants was that under the guise of the construction of such a wall the 3rd respondent is attempting to trespass into the plaint schedule property. Both sides adduced evidence and the court below by the impugned order though dismissed the injunction application, has observed that the 3rd respondent will carry out Ext.B5 -2- F.A.O.No.17/2008 & Caveat O.P.No.858/07 work strictly under the supervision of respondents 1 and 2 and if it is found subsequently that the protection wall is trespassing into the property of the petitioners, the 3rd respondent shall remove it at his own costs. In other words the court below did not enter any finding regarding the alleged trespass or the apprehended trespass. 2. Since a caveat was filed, we have heard the learned counsel appearing for the 3red respondent also. According to the learned counsel for the 3rd respondent, the Surveyor has already fixed the boundary as found by the Commissioner, which is disputed by the appellants herein. The Commission report was made available by the appellants. We have gone through the commission report, in which the Commissioner has reported that there is a canal of PVIP situated on the southern side of the petition schedule property and that the canal lies on the east-west direction. The appellants' property is lying on a lower level than compared to the canal on the southern side. Even though it is found by the Commissioner that there are survey stones seen in the plaintiffs' property which is 1.2 meter away from PVIP, the appellants have filed objection to the commission report. The court below has not passed any orders on the -3- F.A.O.No.17/2008 & Caveat O.P.No.858/07 Commission report. It is while the matter was thus pending that the present order was passed by the court below. It is alleged in the appeal memorandum that subsequent to the order passed by the court below on 17/1/2008 an attempt is made to dig within the plaint schedule property which is about 14 meters away from the canal and thus it is cleared therefrom that the intention of the 3rd respondent is to trespass into the plaint schedule property. This is denied by the 3rd respondent. In the factual situation after hearing both sides, we direct as follows: The court below shall depute the same Commissioner, who shall supervise the construction as permitted by the PVIP authorities and subject to the observation made by the court below that the construction made shall not be done in a manner trespassing into the plaint schedule property. However, as observed by the court below that after such construction, if it is later found that the construction so made is trespassing into the property of the petitioners, based on the survey yet to be conducted on an application to be made by the appellants, the court below will make appropriate orders thereon. Till such time as the Commissioner is deputed by the court below for supervising the work, -4- F.A.O.No.17/2008 & Caveat O.P.No.858/07 status quo as on today will be maintained. The court below may depute the Commissioner for such purpose as indicated above within one week from the date of production of a copy of this judgment by either of the parties. Appeal is disposed of as above. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.