IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 FAO.No. 99 of 2009() -------------------- I.A.NO.1828 OF 2008 IN A.S.NO.150/2008 ON THE FILES OF THE SUB JUDGE, KOTTARAKKARA APPELLANT/PETITIONER/APPELLANT/PLAINTIFF ------------------------------------------------------------ ANNAMMA @ SISILI,PANANPADICKAL HOUSE, PUNCHIRIMUKKU,YEROOR, YEROOR VILLAGE,PATHANAPURAM TALUK. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): COUNTER PETITIONER/RESPONDENT 4TH ------------------------------------------------ T.CHANDRASEKHARAN @ CHANDRAN MAISRY, SARAVANA,CHILLING PLANT JUNCTION,YEROOR,YEROOR VILLAGE,PATHANAPURAM TALUK. ADV. SRI.V.PREMCHAND FOR R THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = F.A.O.No.99 of 2009 = = = = = = = = = = = = = = Dated this the 26 th day of June, 2009 JUDGMENT The plaintiff in O.S.No.150 of 2005 on the file of the Munsiff's Court, Punalur is the appellant in this appeal filed under Order XLIII Rule 1(u) C.P.C. The said suit was one for partition of one item of property which is having an extent of 5.2 acres. The plaint schedule property admittedly belonged to Rev.Fr.Baby (Fr.P.A.Mathew) the father of plaintiffs 2 and 3, The 1st defendant Mariamma Mathew is the widow of the said Rev.Fr..Baby. They had three children of whom the 2nd defendant is the son and the plaintiff and the 3rd defendant are the daughters. Rev.Fr.Baby died some time after 27.1.2001. According to the defendants he had executed Ext.B7 Registered Will dated 27.1.2001 bequeathing the plaint schedule property to defendants 2 and 3 and that defendants 2 and 3 had subsequently sold the plaint schedule property to the 4th defendant as per Ext.B9 sale deed. 2. The learned Munsiff, after trial, upheld the contentions F.A.O.No.99 of 2009 2 of the defendants as also Ext.B7 Will which was assailed on various grounds. Aggrieved by the judgment and decree dated 4.11.2008 dismissing the suit, the appellant/plaintiff has preferred an appeal before the Sub Court, Kottarakkara as A.S.No.150 of 2008. Pending appeal she filed I.A.No.1828 of 2008 seeking a temporary injunction against committing waste, cutting and removing trees and causing destruction in the property. As per the impugned order dated 3.2.2009, the learned Subordinate Judge after hearing both sides passed an order as follows:- “4th respondent filed objection. Heard. R4 is restrained from committing any waste in the property. It is made clear that the order is not a bar against the respondent to cut and remove old rubber trees for the purpose of planting new rubber saplings” It is the above order which is assailed in this appeal. 3. I heard the learned counsel appearing on either sides. 4. The learned counsel for the plaintiff/ appellant submitted that without indicating as to which all are the old rubber trees which are to be replaced by slaughter tapping, the 4th defendant was not entitled to pray for a blanket order F.A.O.No.99 of 2009 3 entitling him to cut and remove the old rubber trees for the purpose of planting new rubber saplings. 5. I am afraid that I cannot agree with the above submissions. At the instance of the plaintiff a Commission was taken out by the trial court and the Commission has filed Ext.C3 report dated 13.7.2005 wherein there is reference about 200 rubber trees which are 15 years of old and which are under the process of slaughter tapping. When there is a clear record as to the number of trees and the age of those trees, it was not necessary for the defendants to satisfy the trees which are to be replaced by planting rubber saplings. Eventhough the lower appellate court has permitted the 4th defendant to cut and remove the old rubber trees for the purpose of slaughter tapping he is also restrained from committing any acts of waste in the property. The said direction will suffice for the proper protection of the property. Such being the position I see no good ground to interfere with the impugned order dated 3.2.2009. This appeal is accordingly dismissed. Dated this the 26th day of June, 2009. V. RAMKUMAR, JUDGE sj