IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 CRP.No. 1028 of 1997(A) ----------------------- CMA.35/1992 of ADDL.DISTRICT COURT, THRISSUR OS.831/1988 of MUNSIFF COURT,CHAVAKKAD (IA.985/90 IN IA.2269/88) .................... REVN. PETITIONER/RESPONDENT/PLAINTIFF ----------------------------------------------- VAREED S/O KOOTHOORU VELLATTUKARA ANTONY VENKITANG DESOM, AMSOM, CHAVAKKAD BY ADV. SRI.A.K.CHINNAN RESPONDENTS/APPELLANTS/DEFENDANTS ----------------------------------------------- 1. THEKKE KONCHIRA KOAL PADAVU COMMITTEE IRIMBRANELLUR DESOM, AMSOM, REPRESENTED BY ITS PRESENT PRESIDENT K.M.ANTONY , VENKITANG DESOM AMSOM, CHAVAKKAD 2. THEKKE KONCHIRA KALE PADAVU COMMITTEE IRIMBRANELLUR DESOM, AMSOM , REPRESENTED BY ITS PRESENT SECRETARY PUZHANKARA ILLOTH P.K. ABOO BY ADV. SRI.P.V.CHANDRA MOHAN FOR R1 & R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------ C.R.P No. 1028 of 1997 ------------------------------------------- Dated this the 6th day of June 2008 ORDER The plaintiff in O.S. 831/1988 on the file of the Munsiff Court Chavakkad is the revision petitioner As per I.A 2269/1988 filed in the suit, a temporary injunction was granted against the respondents restraining them from trespassing into or constructing new varamba or causing damages to the paddy cultivation in the plaint schedule properties. The grievance of the revision petitioner is that the respondents in the I.As who are the office bearers of the Konchira Kole Padavu committee, have are violated the order of interim injunction passed by the Court on 1.4.1990. According to the revision petitioner the respondents trespassed into the plaint schedule property, removed soil from the water channel, deepened and widened the same. Therefore I.A. 985/1990 was filed under Order 39 Rule 2 A of the Code of Civil Procedure requesting the trial court to take action against the respondents for violation of the injunction order passed in I.A. 2269/1988 in the suit. I.A. 985/1990 was taken up for consideration along with the suit. On the basis of the oral evidence and Commissioner's report the trial court found that the respondents entered the property , widened the water chal and deepened and therefore the respondents have violated the injunction order. The trial court therefore allowed I.A. No.985/1988 directing the respondents to C.R.P No. 1028 of 1997 -2- pay Rs. 1,000/- to the revision petitioner as compensation for the damages within one month from the date of that order . 2. The trial court issued order of interim injunction in I.A. 2269/1988 dated 16.12.1988 restraining the respondents from trespassing into the plaint schedule properties and constructing a new varamba or destroying the crops . The order of injunction was served on the respondents on 19.12.1988 PW1, the revision petitioner deposed that after accepting the interim injunction order, the respondents in violation of the order on 1.4.1990 trespassed into the property and removed soil from the water channel passing through the middle of the plaint schedule properties and deepened and widened the same. According to the revision petitioner as PW1 due to the aforesaid conduct of the respondents his property to a width of 2 feet on either side of channel has been lost. The president of the Kole padavu committee was examined as DW1 He has stated that on 1-4-1990 the water channel passing through the plaint schedule property was not deepened He has admitted that he had entered into the property and effected maintenance work to the water channel He admitted that he has received the order of injunction and further admitted that the respondents have understood the contents of the interim injunction. In Ext C3 report the Commissioner has stated that water channel situated in between the point B and C marked in Ext C2 sketch has been widened and deepened. The Commissioner also reported that the channel has been deepened by about 3 feet and the present width is 9 feet It is also reported by the Commissioner that the soil removed at the time of deepening and C.R.P No. 1028 of 1997 -3- widening the water channel has been kept on either side of the channel The Commissioner has prepared Ext. C3 report based on his inspection of the properties on 1.4.1990. PW2 is the Commissioner. On the basis of Ext C3 report and oral evidence of PW1 and DW1 the trial court rightly held that the respondents have violated the order of injunction. 3. The appellate court in C.M.A. 35/1992 had approached the violation matter in a different way. According to the appellate court the respondents have an obligation to drain out water making cultivation feasible in the paddy fields. The appellate court also noted the evidence of the revision petitioner to the effect that the Committee is under an obligation to drain out water from his fields and also to make water available to his fields The appellate court concluded that , even though the chal is situated in the revision petitioner's property, his right over the chal is subject to the right of the Committee to carry out periodical repairs and maintenance work in the chal to ensure free flow of water so as to make it available to other cultivators also,. The appellate court also held that there is no allegation that the respondents have appropriated any portion of the paddy files belonging to the revision petitioner as such for widening the water chal. After discussing the facts and circumstances the appellate court finally held that the mere fact that Ext C3 report says that the chal has been widened cannot be taken as a ground to held that the respondent wilfully violated the order of injunction passed by the trial court . 4. I have gone through the order passed by the lower appellate C.R.P No. 1028 of 1997 -4- court The lower appellate court reiterated the findings entered by it in its judgment in A.S.No. 60/1992 filed against the decree and judgment in the suit. The question whether the interim order of injunction passed by the trial court is violated or not is the question to be adjudicated in the C.M.A. .The trial court already adjudicated the question as to whether there is any violation or not and came into a conclusion. The appellate court did not go into the questions raised in the C.M.A. and maintain the stand that the respondents are entitled to effect maintenance work and they can enter the property. A modification was passed by the lower appellate court in the judgment dated 28.1.1997 in A.S. 60/1992. The decree was modified in appeal. The order of injunction passed by the trial court was in force through out the pendency of the appeal suit. Admittedly they have entered the property on 1.4.1990 and the commissioner found that they have deepened and widened the channel The trial court rightly concluded that the respondents have violated the order of injunction and therefore a consequent order was passed. The appellate court's reversal of the order of injunction is without any basis and datas when considering the case on hand. In the result, this Civil Revision petition is allowed. The order passed by the trial court is restored There will be no order as to costs. HARUN-UL-RASHID, JUDGE es