IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 OP(C).No. 1360 of 2011(O) ----------------------------------- PETITIONER: -------------------- T.J.MATHEW, AGED 61 YEARS, S/O T.I.JACOB, THAZHAMUTTOTHU VEETTIL, KODUKULLANNI MURI, ALA VILLAGE, CHENGANNUR,ALLAPUZHA. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENTS: ----------------------- 1. T.I.GEORGE,AGED 87 YEARS, S/O.IDICULLA, THANUVALITHARAYIL MURI, KODUKULLANNI MURI, ALA VILLAGE CHENGANNUR, ALLAPPUZHA. -689 121 2. GEORGE JOHN, AGED 45 YEARS S/O.T.I.GEORGE,THANUVALITHARAYIL MURI, KODUKULLANNI MURI, ALA VILLAGE CHENGANNUR, ALLAPPUZHA.-689 121 3. GEORGE ABRAHAM, AGED 42 YEARS S/O. T.I.GEORGE,THANUVALITHARAYIL MURI, KODUKULLANNI MURI, ALA VILLAGE CHENGANNUR, ALLAPPUZHA.-689 121 4. CHERIAN T GEORGE, AGED 40 YEARS S/O. T.I.GEORGE,THANUVALITHARAYIL MURI, KODUKULLANNI MURI, ALA VILLAGE CHENGANNUR, ALLAPPUZHA.-689 121 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1360 of 2011(O) ----------------------------------------- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT IN OS NO.55 OF 2011 ON THE FILE OF THE H'BLE MUNSIFF COURT CHENGANNUR EXT.P2 : COPY OF THE APPLICATION FILED BY THE RESPONDENTS AS IA NO. 283 OF 2011 TO APPOINT A COMMISSIONER EXT.P3 : COPY OF THE APPLICATION FILED BY THE PETITIONER AS IA NO. 310 OF 2011 TO APPOINT A SURVEYOR TO ASSIT THE COMMISSIONER EXT.P4 : COPY OF THE APPLICATION FILED BY THE RESPONDENTS AS IA NO. 282 OF 2011 SEEKING TO DEMOLISH THE WALL CONSTRUCTED BY THE PETITIONER. RESPONDENT'S EXHIBITS: NIL TRUE COPY PA TO JUDGE SMT K.T.SANKARAN, J. ------------------------------ O.P(C)No.1360 OF 2011 ------------------------------ Dated this the 8 th day of April, 2011 JUDGMENT The petitioner is the plaintiff in O.S.No.55 of 2011 on the file of the Court of the Munsiff of Chengannur. The suit was filed for a permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property and causing obstruction to the plaintiff in constructing a compound wall on the boundary of the plaint schedule property. It is stated that an application for temporary injunction was filed by the plaintiff. The court below granted interim injunction. A Commissioner was appointed at the instance of the plaintiff, in whose presence the compound wall was constructed by the plaintiff. The defendants raised a contention that the compound wall was constructed not on the boundary of the plaint schedule property, but encroaching upon their property. They also relied on the O.P(C)No.1360 OF 2011 2 Commissioner's report and plan in another suit. The defendants filed an application for appointing a Commissioner to measure out the property. The same Commissioner was appointed by the court. It is stated by the learned counsel for the defendants that the Commissioner executed the work. 2. Before the Commissioner inspected the property, the plaintiff filed I.A.No.310 of 2011 (Ext.P3)to appoint a surveyor to assist the Commissioner and to note the boundaries of the plaint schedule property in accordance with the resurvey plan. It is stated in the application that it is necessary to find out whether the compound wall was constructed within the property of the plaintiff. The grievance of the plaintiff is that I.A.No.310 of 2011 is not disposed of. It is pointed out that the defendants filed Ext.P4 application (I.A.No.282 of 2011) for vacating the O.P(C)No.1360 OF 2011 3 order of injunction and to grant an interim mandatory injunction directing the plaintiff to remove the newly constructed compound wall allegedly encroaching upon the defendant's property. I.A.No.282 of 2011 is pending disposal. The learned counsel for the respondents/defendants submitted that I.A.No.282 of 2011 was heard on 5.4.2011. 3. It is submitted by the learned counsel for the petitioner that before measuring out the property in accordance with the survey with the help of a surveyor, if I.A.No.282 of 2011 happens to be allowed, the plaintiff would be put to serious prejudice and irreparable injury. It is therefore, submitted that in the facts and circumstances of the case, it is highly necessary to issue a direction to the trial court to dispose of I.A.No.310 of 2011 before passing final orders in I.A.No.282 of 2011. O.P(C)No.1360 OF 2011 4 4. After having heard the learned counsel appearing for the parties, the Original Petition is disposed of as follows: i) The trial court shall consider and dispose of I.A.No.310 of 2011 as expeditiously as possible. ii) The trial court shall keep in abeyance I.A.No.282 of 2011 till a final decision is taken in I.A.No.310 of 2011. If the court decides to allow I.A.No.310 of 2011, final orders in I.A.No.282 of 2011 shall be passed only after the Commissioner inspects the property as prayed for in I.A.No.310 of 2011. However, if the court dismisses I.A.No.310 of 2011, it is not necessary to keep in abeyance the disposal of I.A.No.282 of 2011 thereafter. O.P(C)No.1360 OF 2011 5 iii) It is made clear that I have not expressed any opinion on the merits of the contentions put forward by either party. K.T.SANKARAN, JUDGE. cms Issue copy of the order today itself.