IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 OP(C).NO. 856 OF 2011(O) ------------------------------------- CMA.23/2010 OF SUB COURT, PALA OS.203/2010 OF MUNSIFF COURT, PALA .................... PETITIONERS: ----------------------- 1. JOSEPH.T.M, AGED 40 YEARS, THENGUMTHOTTATHIL (H), PULIYANNOOR KARA, PULIYANOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT REPRESENTED BY DULY CONSTITUTED POWER OF ATTORNEY THE 2ND PETITIONER. 2. SCARIA ABRAHAM, AGED 68 YEARS, THENGUMTHOTTATHIL (H), PULIYANNOOR KARA, PULIYANOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------------ 1. THRESIAMMA THOMAS, W/O.THOMAS, ELANGIMATTATHIL HOUSE, PULIYANNOR KARA, PULIYANOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. SONEY JOSEPH, S/O.JOSEPH, CHACKALACKAL (ELANGIMATTATHIL) HOUSE, PULIYANNOOR KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ADV. SRI.P.C.HARIDAS FOR R1-2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.856 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE COPY OF THE ORDER OF INJUNCTION DATED 31.8.2010 IN I.A. NO.1296 OF 2010 IN O.S. NO.203 OF 2010 OF THE COURT OF THE MUNSIFF OF PALA. EXHIBIT P2 A TRUE COPY OF THE COMMISSION REPORT AND SKETCH DATED 8.9.2010 IN O.S. NO.203 OF 2010 OF THE MUNSIFF COURT PALA. EXHIBIT P3 A TRUE COPY OF I.A. NO.1495 OF 2010 IN O.S. NO.203 OF THE COURT OF THE MUNSIFF OF PALA. EXHIBIT P4 A TRUE COPY OF THE COMMISSION REPORT DATED 15.10.2010 IN O.S. NO.203 OF 2010 OF THE MUNSIFF COURT, PALA. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 10.11.2010 IN I.A. NO.1495 OF 2010 IN O.S. NO.203 OF 2010 OF THE COURT OF MUNSIFF, PALA. EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 6.1.2011 IN C.M.A. NO.23 OF 2010 OF THE SUB COURT, PALA. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.856 of 2011 -------------------------------------- Dated this the 12th day of July, 2011. JUDGMENT Petitioners are the plaintiffs in O.S.No.203 of 2010 of the court of learned Munsiff, Pala. That is a suit for prohibitory injunction against trespass, construction of road through the suit property and commission of waste. Along with suit petitioners filed I.A.No.1296 of 2010 for an order of temporary injunction. On that application learned Munsiff passed Ext.P1, order on 31.08.2010 restraining respondents from trespassing into the suit property. The order was served on respondents on 31.08.2010. On the request of petitioners, an Advocate Commissioner inspected the property on the same day and submitted Ext.P2, report. In that report the Advocate Commissioner stated that the property of respondents extent upto the Meenachil river on the east and that the weeds were seen cleared through the property of respondents upto the property of petitioners. Advocate Commissioner noticed a pathway through the property of respondents towards north. It is also reported by Advocate Commissioner in Ext.P2 that the second respondent who was present at the spot had not pointed out any other way (through the property of petitioners). The Advocate Commissioner also reported that the suit property is situated on the north of property belonging to the second respondent. The said properties are separated by a stone wall having oldness of about five years. On the eastern boundary of the suit property there was a mud wall separating it from the OP(C) No.856/2011 2 Meenachil river at a height of 15'. The case was posted for appearance of respondents on 30.09.2010. According to the petitioners, on 28.09.2010 respondents in violation of Ext.P1, injunction order trespassed into the suit property towards its eastern side and cut open a pathway to their property on the north destroying the boundary wall and trees standing thereon. Pursuant to that, Advocate Commissioner again inspected the property and submitted Ext.P4, report stating that a pathway is seen newly constructed along eastern portion of the suit property. Advocate Commissioner has also reported that some improvements were destroyed for construction of the pathway. Following Ext.P4, report petitioners filed I.A.No.1495 of 2010 for an order of mandatory injunction to restore status quo of the suit property as on the date of first inspection by the Advocate Commissioner (ie. on 31.08.2010). On that application learned Munsiff passed order directing restoration of the status quo as requested by petitioners. Ext.P5, order passed by the learned Munsiff was challenged by respondents in C.M.A.No.23 of 2010 before learned Sub Judge, Pala. Learned Sub Judge found that there appeared to be some dispute regarding the western, northern and southern boundary of the suit property. It is also observed that eastern boundary is shown as Meenachil river. But, according to the respondents, eastern boundary is only upto river bed and not upto the area where river water is flowing. Learned Sub Judge noticed some merit in that contention. According to the learned Sub Judge before allowing I.A.No.1495 of 2010 evidence has to be recorded including a survey of the property through a survey commission. Ext.P5, order was set aside and OP(C) No.856/2011 3 I.A.No.1495 of 2010 was remitted to the learned Munsiff for fresh decision after getting survey commission report and after adducing evidence by both sides if they so advised. The said judgment is under challenge. Learned counsel for petitioners contended that consequence of the judgment of learned Sub Judge is that it is open to a party violate the order of injunction without any consequence. It is pointed out that it is the responsibility of court to direct restoration of the property to its position as it was when the Advocate Commissioner inspected property on 31.08.2010. 2. Learned counsel for respondents in response contended that there is dispute regarding eastern boundary of the suit property in that the entire property upto where through water flows is not part of the suit property belonging to the petitioners. It contended that there is a bathing ghat towards the south eastern portion of the suit property and respondents were walking along eastern side of the suit property to reach the bathing ghat. It is submitted that the way along river puramboke was cleared by the local people and not by respondents. 3. The question for consideration is whether Ext.P6, judgment of the learned Sub Judge requires interference. Even if it is assumed for the sake of argument that any portion of the property of petitioners described in plaint schedule takes in puramboke land, it is not as if it was open to the respondents to take law into their hands and in violation of the order of injunction cut open a way through the said portion. They are bound to respect the order of court. OP(C) No.856/2011 4 Now I am concerned with the question whether the suit property as it stood on the date of first inspection by Advocate Commissioner has to be restored to that position. For that I am not inclined to think that a survey commission is required. For, the question is whether Advocate Commissioner has identified the suit property as described in the plaint schedule and whether pathway has been cut open through the said property as described in the plaint in violation of the order of injunction. I am not inclined to think that a survey commission is required so far as I.A.No.1495 of 2010 is concerned. It is sufficient that the parties adduced evidence regarding the position of suit property as on the date of first inspection by the Advocate Commissioner and the alleged violation as the Advocate Commissioner has reported in his second report. On that point it is open to the parties to adduce evidence and if the trial court finds that there is an alteration of the situation from what it was on the date of first inspection by the Commissioner, necessarily the trial court has to direct restoration as on the date of first inspection of the Advocate Commissioner. Resultantly this Original Petition is allowed in the following lines: i. Ext.P6, judgment of learned Sub Judge, Pala in C.M.A.No.23 of 2010 is modified to the extent that it is not necessary for disposal of I.A.No.1495 of 2010 that there must be a survey commission and evidence in that line. But parties could adduce evidence in I.A.No.1495 of 2010 as regards the position OP(C) No.856/2011 5 of the suit property on the date of first inspection by the Advocate Commissioner and the alleged violation of the order of injunction and cutting opening of the road. ii. If the trial court finds on evidence that position of property as on the date of first inspection was altered in violation of the order of injunction, it is open to the trial court to direct restoration of the property. iii. I make it clear that this order will not in any way affect the right of the Government if any to ascertain whether there is any puramboke land and taking action in that regard. iv. Learned Munsiff is directed to dispose of I.A.1495 of 2010 (in O.S.No.203 of 2010) as early as possible. THOMAS P.JOSEPH, Judge. cks