IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 23890 of 2008(R) -------------------------- CMA.36/2007 of ADDL. DISTRICT JUDGE/SPECIAL JUDGE FOR NDPS ACT CASES, THODUPUZHA OS.37/2007 of MUNSIFF COURT,THODUPUZHA .................... PETITIONER: ------------ SANTHAKUMARI, W/O.M.VIJAYAGOPALA PILLAI KAVUMPURATH HOUSE, MANAKKADU KARA, MANAKKADU VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENTS: ------------- 1. RAJAGOPALAN, S/O.VASUDEVAN NAIR, KAVUMPURATHU HOUSE, MANAKKADU KARA, & VILLAGE, THODUPUZHA TALUK. 2. RAMESAN, S/O.VASUDEVAN NAIR, DO. DO. BY ADV. SRI.T.J.MICHAEL FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioner's Exhibits:- Ext.P1:- A true copy of the plaint dated 7.2.2007 in O.S.No.37 of 2007. Ext.P2:- A true copy of the affidavit and petition by the petitioner dated 7.2.2007. Ext.P3:- A true copy of the Commissioner's report and rough sketch dated 12.2.2007. Ext.P4:- A true copy of the application by the petitioner dated 6.3.2007. Ext.P5:- A true copy of the counter affidavit of the respondents dated 26.3.2007. Ext.P6:- A true copy of the common order dated 4.4.2007, Munsiff Court, Thodupuzha. Ext.P7:- A true copy of the common judgment dated 10.6.2008 in CMA Nos.33 & 36 of 2007. /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.23890 OF 2008 =========================== Dated this the 28th day of August, 2008 JUDGMENT Petitioner is the plaintiff and respondents the defendants in O.S.37/2007 on the file of Munsiff Court, Thodupuzha. I.A.176/2007 was filed under Order XXXIX Rule 1 restraining the respondents from constructing any mud road through the plaint schedule property or doing any act which is detrimental to the peaceful possession and enjoyment of plaint schedule property. Respondents resisted the petition. I.A.371/2007 was filed to allow the petitioner to reconstruct the demolished eastern boundary kayyala contending that the boundary kayyala was unauthorisedly demolished by respondents. Under Ext.P6 order learned Munsiff dismissed I.A.371/2007 and directed the parties to keep status quo as reported by the Commissioner till disposal of the suit. Petitioner filed CMA 33/2007 and C.M.A.36/2007 before the District W.P.(C)23890/2008 2 Court, Thodupuzha challenging Ext.P6 order. CMA 33/2007 was filed challenging the order in I.A.176/2007 and C.M.A.36/2007 challenging the order in I.A.371/2007. Under Ext.P7 order, learned District Judge dismissed CMA 36/2007. CMA 33/2007 was allowed in part and an order of temporary injunction was granted restraining respondents from making further demolition of the boundaries or committing acts of waste in the property till disposal of the suit. This petition is filed under Article 227 of the Constitution of India challenging Ext.P7 order. 2. Learned counsel appearing for petitioner and respondents were heard. 3. Learned senior counsel appearing for petitioner vehemently argued that when respondents demolished the boundary kayyala, as found by learned District Judge, and also found that respondents are justifying the act by contending that there was consent by the petitioner and it was also found that respondents are not entitled to W.P.(C)23890/2008 3 take vehicles through the road, learned District Judge was not justified in not granting an order restraining respondents from plying vehicle through the road or from trespassing into the plaint schedule property. Learned counsel argued that when the eastern boundary kayyala was demolished by respondents, for the protection of their property permission should have been granted to construct the demolished portion of the kayyala and therefore CMA 36/2007 also should have been allowed. 4. Learned counsel for respondents argued that the suits are now ripe for trial and the question whether consent set up by the respondents is true or not is to be decided in the suit and when it is found that there is a road there is no justification for restraining the usage of that road and there is no illegality or irregularity warranting interference in Ext.P7 order. 5. Learned District Judge under Ext.P7 order found that a road has been formed through the eastern boundary of the plaint schedule property. W.P.(C)23890/2008 4 Learned District Judge also found that a portion of the eastern boundary kayyala was demolished and respondents are contending that demolition was pursuant to the consent, which is to be ultimately decided in the suit. In the light of that finding, I do not find any illegality in refusing permission to the petitioner to reconstruct the demolished portion of the kayyala. Similarly when the court on the materials placed found that a road exist and an order restraining respondents from making further demolition of the boundaries or committing acts of waste in the property is granted, there is no necessity for a specific order restraining further trespass, as it implies in the order itself. 6. The only other question is whether an order is to be granted restraining respondents from plying vehicles through the newly made road. The argument of the learned counsel is that in paragraph 14 of Ext.P7 order it was specifically found that until the final decision, defendants are W.P.(C)23890/2008 5 not entitled to ply vehicles along the newly made road and therefore atleast an order is to be granted restraining respondents from plying vehicles. When it is found that a mud road now exists and the respondents are contending that it is constructed by the consent of the petitioner and learned District Judge found that the question of consent could only be decided on evidence in the suit, I do not find it necessary to restrain respondents from plying vehicle as sought for. But by plying vehicles respondents shall not cause any damage to the property. Learned Munsiff to dispose the suit as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006