IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 OP(C).No. 2602 of 2011(O) -------------------------------------- OS.NO. 291/2009 of MUNSIFF COURT, HOSDURG .................... PETITIONERS ---------------------- 1. AMBU NARANTHATTA VALAPPIL, AGED 75 YEARS, S/O. VADAKKAN, RESIDING AT NARANTHATTA VALAPPIL, KALLAR VILLAGE, HOSDURG TALUK. 2. N.C.JOSEPH, AGED 53 YEARS, S/O. CHACKO, RESIDING AT NADUVILAMAKKAL HOUSE, KALLAR VILLAGE, HOSDURG TALUK, P.O.RAJAPURAM. BY ADVS. SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN SRI.K.M.HASHIR SRI.K.M.MUHAMMED HUSSAIN RESPONDENT(S): --------------------------- MULLACHERY NARAYANAN NAIR, AGED 83 YEARS, S/O. DAMODARAN NAMBEESHAN, RESIDING AT ANIL NIVAS, KALLAR VILLAGE OF HOSDURG TALUK, P.O.RAJAPURAM.PIN-671 532 BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2602/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE INJUNCTION APPLICATION AS I.A.1841/2009 IN O.S.NO.291/2009 WITH DOCKET ORDER. P2 COPY OF THE COMMISSION REPORT DATED 11/11/2009 ALONG WITH EYE SKETCH. P3 COPY OF THE COMMISSION REPORT DATED 3/7/2010. P4 COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS. P5 COPY OF THE PHOTOGRAPHS P6 COPY OF THE I.A.1196/2011 IN O.S.NO.291/2009. P7 COPY OF THE COUNTER FILED BY THE RESPONDENT. P8 COPY OF THE ORDER OF THE COURT OF MUNSIFF OF HOSDURG DATED 22/6/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2602 of 2011 -------------------------------------- Dated this the 18th day of August, 2011. JUDGMENT Defendants in O.S.No.291 of 2001 of the court of learned Munsiff, Hosdurg are the petitioners before me challenging Ext.P8, order dated June 22, 2011 on I.A.No.1196 of 2011. Respondent filed a suit for a decree for prohibitory injunction against trespass into the suit property described as 1.50 acres, bounded by thodu on the east and road on the west. Learned Munsiff granted an order of temporary injunction on 10.08.2009 on I.A.No.1841 of 2009. The Advocate Commissioner inspected the property and submitted a report. Advocate Commissioner reported the existence of a bridge (made of arecanut logs) one end of which touched the suit property on its eastern portion to cross the thodu. Petitioners filed I.A.No.1196 of 2011 to permit them replace the old, damaged arecanut logs put across the thodu. They claimed that without doing that they cannot cross the thodu and pass through the road on the north of the suit property. That application was dismissed by Ext.P8, order. Learned Munsiff observed that there is an order of injunction vide order dated 10.08.2009 on I.A.No.1841 of 2009 restraining petitioners from trespassing into the suit property, identity and boundaries are in dispute and it is essential to preserve the property till the disposal of the suit. Learned Munsiff observed that if the application is allowed it would go against the order of injunction passed on I.A.No.1841 of 2009. In that view the application was dismissed. Ext.P8, order to that effect is under challenge. OP(C) No.2602/2011 2 2. Learned counsel argued that petitioners who are residing on the east of the thodu have no access to the western side except by crossing the thodu for which it is necessary to use the wooden bridge. It is also pointed out that some of the arecanut logs are damaged and in dilapidated condition. 3. But learned Munsiff in Ext.P8, order has observed that the order of injunction passed on I.A.No.1841 of 2009 remains in force and that the request of petitioners if allowed would go against the above order. So far as the order of injunction remains in force, the request of petitioners cannot be allowed. 4. Learned counsel requested that petitioners may be permitted to move application under Order 39 Rule 4 of the Code of Civil Procedure. It is open to the petitioners to move appropriate application before learned Munsiff if they are so entitled, and as provided under law. Resultantly without prejudice to the right of petitioners to seek appropriate relief in the trial court as provided under law, this Original Petition is closed. THOMAS P.JOSEPH, Judge. cks