IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 OP(C).No. 2085 of 2011(O) ------------------------- IN IA 895/2011 IN OS.74/2011 of M.C.,PARAPPANANGADI .................... PETITIONER: ------------------ MUHAMMEDKUTTY, AGED 65 YEARS, S/O.KOGENTE CHERUPURAKKAL PORUKUTTY, PARAPPANANGADY AMSOM DESOM. BY ADVS. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR SMT.M.S.KIRAN RESPONDENT(S): --------------- ALIPATHU NAFEESAKUTTY, AGED 40 YEARS, W/O.HABEEBA THANGAL, ARIYALLUR AMSOM DESOM, ARIYALLUR P.O., MALAPPURAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2085 of 2011 APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE PLAINT IN O.S. NO.74/2011 P2 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN I.A. NO.566/2011. P3 : COPY OF THE SKETCH AND REPORT SUBMITTED BY THE COMMISSIONER. P4 : COPY OF THE AFFIDAVIT AND THE PETITION IN I.A. NO.895/2011. P5 : COPY OF THE UNDERTAKING P6 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER P7 : COPY OF THE ORDER PASSED BY THE COURT BELOW IN I.A. NO.895/2011 IN O.S. NO.74/2011. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE smvd THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2085 of 2011 --------------------------------------- Dated this 05th day of July, 2011 JUDGMENT Petitioner claimed that plaint B schedule belongs to him as per document No.2132 of 1982. It is the further claim that plaint A schedule which formed part of plaint B schedule was trespassed upon by the respondent at a time when petitioner was not in station on account of various reasons. Respondent started construction of a building for his residence encroaching into plaint A schedule as well. At that stage, petitioner filed O.S.No.74 of 0211 in the Court of learned Munsiff, Parappanangadi for recovery of possession of plaint A schedule (on the strength of his title) after demolishing that part of the structure respondent has constructed in the said property and for other reliefs. Respondent, on getting summons in the suit rushed to the Court and filed I.A.No.895 of 2011 seeking permission to construct roof of the building for his residence. He made an undertaking that in case the suit is decreed, he will demolish that part of the house and hand over possession of property found to be belonging to the petitioner. The application was resisted by petitioner. Learned Munsiff passed Ext.P7, order allowing respondent to O.P(C).No.2085 of 2011 -: 2 :- construct roof of the structure and reside there but making it clear that respondent shall complete construction of the house in the light of the permission granted and that he shall be bound to remove the construction if it is found that the house or any portion of the house is situated in the property of petitioner. Petitioner is aggrieved by that order and has filed this original petition in challenge of it. Learned counsel has submitted that respondent had not even filed written statement raising his contentions. The Advocate Commissioner has clearly demarcated the property trespassed upon by the respondent. In the circumstance learned Munsiff was not correct in granting permission to the respondent to put up a permanent roof for the structure even if it was necessary to allow put up a temporary roof over the structure already built. 2. On going through the reliefs prayed for in the plaint and the undertaking made by the respondent as revealed from Ext.P7 and relief granted on I.A.No.895 of 2011, I am not inclined to think that petitioner is prejudiced by the said order, for, he has sought recovery of possession on the strength of his title after removing the entire structure in the disputed property. That will include the roof whether permanent or temporary put up by the O.P(C).No.2085 of 2011 -: 3 :- respondent during the pendancy of the suit as well. Respondent has undertaken that he will remove that part of the structure if found in the property belonging to the petitioner. These are sufficient to safeguard the interest of petitioner. I am not inclined to think that court below has committed any illegality or injustice requiring this Court to interfere under Article.227 of the Constitution. Resultantly this original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-