IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 OP(C).No. 4157 of 2011(O) ------------------------- OS.169/2011 of SUB COURT, PERUMBAVOOR .................... PETITIONERS: 1. CHINNAMMA, AGED 72 W/o. MATHEW, NADAMKUZHY HOUSE PULLUVAZHY KARA RAYAMANGALAM VILLAGE KUNNATHUNADU TALUK, PIN-683 541 2. JOSE, AGED 53, S/o.MATHEW NADAMKUZHY HOUSE PULLUVAZHY KARA RAYAMANGALAM VILLAGE KUNNATHUNADU TALUK, PIN-683 541 3. SAJU, AGED 44, S/o. MATHEW NADAMKUZHY HOUSE PULLUVAZHY KARA RAYAMANGALAM VILLAGE KUNNATHUNADU TALUK, PIN-683 541 4. THOMAS, AGED 34, S/o.MATHEW NADAMKUZHY HOUSE PULLUVAZHY KARA RAYAMANGALAM VILLAGE KUNNATHUNADU TALUK, PIN-683 541 BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM OP(C) No.4157/2011 2 RESPONDENT(S): --------------- 1. JOSE V MATTOM @ OUSEPH S/o.VARKEY, MANNULLIL HOUSE KUMALY KARA, KUMALY VILLAGE PEERUMEDU TALUK, IDUKKI DISTRICT-685509 2. KOCHU THRESSIA @ THRESSIA W/O. MANUEL ALANGATTU MANAVALAN HOUSE DIVISION 36 OF KOCHI CORPORATION THRIKKANARVATTOM DESOM ERNAKULAM VILLAGE, KANAYANNOOR TALUK KOCHI – 682 017 3. JOSHY, S/o. VARKEY CHENGALATHU PARAMBIL HOUSE KUMALY KARA, KUMALY VILLAGE PEERUMEDU TALUK, IDUKKI DISTRICT-685509 ADV.SRI.P.K.BABU FOR RESPONDENTS THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)No.4157/2011 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : TRUE COPY OF SALE DEED NO.1875 DTD 12.10.2009 OF KURUPPUMPADY S.R.O EXHIBIT P2 : TRUE COPY OF THE PLAIN IN O.S.NO.169 OF 2011 OF SUB COURT, PERUMBAVOOR EXHIBIT P3 : TRUE COPY OF I.A.1619/2011 IN O.S.NO.169 OF 2011 OF SUB COURT, PERUMBAVOOR DTD 28.11.2011 EXHIBIT P4 : TRUE COPY OF I.A.1621/2011 IN O.S.NO.169 OF 2011 OF SUB COURT, PERUMBAVOOR DTD 28.11.2011 EXHIBIT P5 : PHOTOGRAPH SHOWING SCHEDULE PROPERTY EXHIBIT P6 : PHOTOGRAPH SHOWING SCHEDULE PROPERTY RESPONDENTS' EXHIBITS:NIL //true copy// THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4157 of 2011 --------------------------------------- Dated this 20th day of December, 2011 JUDGMENT Respondents appear through counsel. 2. Petitioners, plaintiffs in O.S.No.169 of 2011 of the Court of learned Sub Judge, Perumbavoor sued respondents to set aside Ext.P1, assignment deed and for partition of the suit property claiming that they have half share in the said property. According to the petitioners property belonged to the late Paulose, paternal uncle of petitioner No.2 onwards. On his death, his half share in the property devolved on petitioners while the remaining half share devolved on his wife who died issueless. Respondents 1 and 2 claiming to be the legal representatives of deceased wife of Paulose executed Ext.P1, assignment deed in favour of the third respondent as if they are the absolute owners of the entire suit property. Hence the suit as above stated. Along with the suit petitioners filed Exts.P3 and P4, applications for an order of injunction against commission of waste and for appointment of an Advocate Commissioner to take inventory of the trees in the suit property. Those applications are now posted O.P(C).No.4157 of 2011 -: 2 :- on 09.01.2012 for objection of the respondents. Petitioners allege that third respondent is committing waste by cutting and removing valuable trees from the suit property. 3. Learned counsel for respondents submits that the suit itself is not maintainable and that there are no trees in the suit property. However, learned counsel has undertaken that respondents will not commit any waste in the suit property. 4. In view of the above undertaking which shall remain in force until learned Sub Judge, Perumbavoor disposes of the application for injunction, it is not necessary for me to pass any order on the application for injunction at this stage. But, having regard to the rival contentions and apprehension of petitioners it is required that an Advocate Commissioner inspected the property at the earliest and reported on the present condition of the suit property as prayed for in Ext.P4, application. 5. Now that Ext.P4, application stands posted on 09.01.2012, it is necessary that the said application is heard and disposed of as early as possible. In the result, this original petition is disposed of as follows: (i) The undertaking made by the learned counsel for respondents that respondents will not commit waste in the suit O.P(C).No.4157 of 2011 -: 3 :- property is recorded. It is directed that said undertaking will remain in force until learned Sub Judge disposes of Ext.P3, application as provided under law, untrammelled by any observations contained herein. (ii) It is directed that Ext.P4, application for the issue of commission will stand advanced for hearing before the learned Sub Judge, Perumbavoor on 22.12.2011. Respondents, if have any objection to that application, may prefer their objection before 22.12.2011. Learned Sub Judge shall pass appropriate orders on the said application on 22.12.2011 itself having regard to the fact that the Court is closing for vacation on 24.12.2011. Registrar (Judicial) shall intimate the directions above stated to the learned Sub Judge, Perumbavoor, forthwith. (THOMAS P. JOSEPH, JUDGE) Sbna/-