IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 FAO.No. 312 of 2008 ------------------------- AGAINST THE ORDER DATED 26/11/2008 IN IA 3564/2008 IN OS.308/2008 of SUB COURT, OTTAPPALAM .................... APPELLANT/PETITIONER - PLAINTIFF: ----------------------------------------------- HARIDAS, S/O. LATE KOLYANI KRISHNA GUPTHAN, KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS/REPONDENTS - DEFENDANTS 1, 3 AND 5: ------------------ 1. JANAKI AMMAL, W/O. LATE KOLYANI VEETTIL KRISHNA GUPTHAN, PALLYAPPATHU VEEDU, KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPALAM. 2. BALACHANDRAN, S/O. JANAKI AMMAL, CHAITHANYA, PUTHUPALLIPURAM, EDAPPALLY, NEAR TOLL GATE, COCHIN -24. 3. INDIRA, D/O. JANAKI AMMAL, PALLIYAPATTHU VEEDU, KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPPALAM. ADV. SRI. T. SETHUMADHAVAN(CAVEATOR) THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T. SANKARAN, JJ. ------------------------------------------ F.A.O. No.312 OF 2008 ------------------------------------------ Dated this the 3rd day of December, 2008. J U D G M E N T Sankaran, J. The appellant filed O.S.No.308/2008 on the file of the Sub Court, Ottapalam for partition claiming 30/168 shares in the plaint schedule properties. There are 23 items of immovable properties in the plaint schedule. 2. I.A.No.3564/2008 was filed by the appellant for a temporary injunction restraining the respondents in the application who are defendants 1, 2 and 5 from cutting and removing trees or committing waste in the plaint schedule properties. The first defendant filed I.A.No.3603/2008 seeking permission for slaughter tapping and for cutting and removing the rubber trees from items 16 to 18 in the plaint schedule. The first defendant contended that on 27.10.2006, an agreement was executed by which one Cheriyan was granted the right for slaughter tapping and that in the process of slaughter tapping, F.A.O. No.312/08 2 Cheriyan had cut and removed the trees except 319 trees. Permission was sought to cut and remove the balance 319 rubber trees. 3. The court below by the common order dated 26.11.2008 allowed I.A.No.3603/2008 filed by the first defendant and the permission sought for was granted to cut and remove the balance 319 rubber trees on condition of the first defendant depositing a sum of Rs.1,55,357/- towards the share claimed by the plaintiff. This finding was arrived at on the basis that Exhibit B6 agreement for slaughter tapping was entered into for a consideration of Rs.8,70,000/-. I.A.No.3564/2008 filed by the plaintiff was allowed in part and the respondents therein were restrained from cutting kuzhikoors and committing any other acts of waste in the petition schedule items other than items 16 to 18. 4. This appeal is filed against the order in I.A.No.3564/2008. Learned counsel appearing for the appellant submitted that the appellant intends to challenge the order in I.A.No.3603/2008 as well. It is further submitted that the court below committed an error in thinking that Exhibit B6 agreement F.A.O. No.312/08 3 was admitted by the appellant. It is also contended that it was not proper to grant permission to the first defendant to cut and remove the rubber trees and that too on the basis of a direction to deposit only a sum of Rs.1,55,357/-, taking the consideration shown in Exhibit B6 as a true consideration. 5. The court below has considered all the relevant aspects and safeguarded the interests of the appellant. Exhibit B6 agreement came into existence on 27.10.2006. Whether Exhibit B6 is genuine or not was not apparently considered by the court below, probably because such a contention was not raised by the appellant. Anyhow, that does not mean that he is not entitled to challenge the genuineness of Exhibit B6 at the time of trial. The contention of the appellant that the real value of the rubber trees and the consideration in respect of the right to make slaughter tapping was not reflected in Exhibit B6, is also a matter to be considered at the time of trial of the suit. The order impugned should not preclude the appellant from raising his contention that the right to make slaughter tapping and the right to cut the trees was granted to Cheriyan for a higher F.A.O. No.312/08 4 consideration than that shown in Exhibit B6. It such contentions are proved, the court shall make appropriate directions, while disposing of the suit. 6. It cannot be said that the court below was not justified in granting permission to the first defendant to cut and remove 319 rubber trees from the property. The court below rightly held that slaughter tapping was going on for the last about two years and that no purpose would be served by retaining 319 rubber trees. Taking into account all the relevant facts and circumstances of the case and after protecting the interests of the appellant, the order impugned was passed by the court below. There is no infirmity in the order passed by the court below. The appeal is disposed of with the above observations. The appellant will also be free to raise the contention that Exhibit B6 agreement is not genuine. KURIAN JOSEPH JUDGE K.T. SANKARAN JUDGE smp F.A.O. No.312/08 5 KURIAN JOSEPH & K.T. SANKARAN, JJ. F.A.O. No. 312 OF 2008 J U D G M E N T 03.12.2008