IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 OP(C).No. 385 of 2011(O) ------------------------ AGAINST THE ORDER DATED 07/04/2009 IN IA 1059/2009 IN OS.170/2009 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER: ---------------------- P.M.HASSAN, S/O. MOHAMMED, POOVATHUMCHUVATTIL, CHERUVATTOORKARA, ERAMALLOOR VILLAGE, KOTHAMANGALAM. BY SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE, BY ADV. SRI.M.A.ABDUL HAKHIM. RESPONDENT(S): --------------------------- VASUDEVAN ELAYATH, S/O. SREEDHARAN ELAYATH, THURUTHI ILLATH, CHERUVATTOORKARA, ERAMALLOOR VILLAGE, KOTHAMANGALAM - 686 691. BY ADV. SRI.E.NARAYANAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- OP(C) No.385 of 2011 ------------------------------------- Dated this the 21st day of March 2011 Judgment The petitioner instituted OS No.170/09 against the respondent seeking a permanent prohibitory injunction, restraining him from cutting open a canal through plaint A schedule property which belongs to the petitioner. 2. The defendant in the suit owned properties on the eastern side of the plaintiff's property. Admittedly, there is a PVIP canal, running along the southern side of both the properties. The grievance of the petitioner is that a canal for his irrigation purpose was laid by him through his property which ends in his property itself. According to the petitioner, in continuation of that canal, the defendant tried to cut open a canal through his property, for which he had no right. On this allegation, the suit was laid. 3. The defendant entered appearance and resisted the suit. He disputed the allegations raised in the OPC 385/11 2 plaint and contended that the canal was already in existence running through the property of the plaintiff and leading to the property of the defendant. It was pointed out by the defendant that he had approached the Sub Divisional Magistrate, Muvattupuzha pursuant to which the Village Officer had conducted spot inspection and had ordered to remove all obstructions in the thodu in plaint A schedule property. It was thereafter that the suit was laid by the petitioner, suppressing the material facts. 4. It is unnecessary to go further into the contentions in the written statement for the present purpose. It appears that the petitioner filed IA No.1059/09 in OS No.170/09 seeking temporary injunction against the respondent. The trial court mainly depending upon the commissioner's report and holding that the petitioner had suppressed material facts, dismissed the petition with costs. 5. The petitioner carried the matter in appeal as CMA No.9/09 before the Sub Court, Muvattupuzha. The OPC 385/11 3 lower appellate court on a reconsideration of the materials before it, concurred with the trial court and dismissed the appeal. That brings the petitioner before this court. 6. The main contention taken by the petitioner in this OP is that the finding of the courts below that he had suppressed material facts in the suit, is incorrect. According to him, the number of the petition filed by the respondent before the Sub Divisional Magistrate was 238/09 whereas the report of the Village Officer is numbered as 19/08. The order which the courts below say, was suppressed is passed in MC No.17/09 which according to the petitioner, was an entirely new proceedings in which he had no notice. Accordingly, it is contended that the courts below were not justified in accusing him of having suppressed material facts. Apart from that, the learned counsel also drew attention of this court to the commissioner's report and the Village Officer's report produced along with the petition and pointed out that the contention taken by the defendant is absolutely false. OPC 385/11 4 7. It is not necessary and possible in this proceedings to go into the disputed questions of fact, especially at the interlocutory stage. One has to notice that both the courts below have found that the claim of the petitioner cannot be prima facie true, going by the report and other materials produced before the courts below. The contention taken before this court that the order in MC No.17/09 is entirely new proceedings, cannot be accepted for the simple reason that there is no challenge to that proceedings before this court. Whatever that be, the courts below have found that the claim put forward by the petitioner that the defendant has cut open a canal through the property of the petitioner cannot be easily accepted on the basis of the materials available on record. There is no reason to take a different view. This petition is therefore, without any merits. However, taking note of the fact that the suit is of the year 2009 and there is a possibility of the plaintiff's property being divided into two if the canal is cut open by the defendant through the property of the plaintiff, OPC 385/11 5 it is felt that expeditious disposal of the suit is necessary. In the result, while dismissing the petition, there will be a direction to the Munsiff's Court, Muvattupuzha, to take up and dispose of OS No.170/09 as expeditiously as possible, at any rate, within six months from the date of production of a copy of this order, which may be done immediately after the vacation. The suit shall be disposed of on the basis of the evidence adduced and untrammeled by any of the observations made by this court or any other courts. P.Bhavadasan, Judge sta OPC 385/11 6