IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 OP(C).No. 649 of 2010(O) CMA.16/2010 OF SUB COURT, PALA OS.51/2005 OF MUNSIFF COURT, PALA PETITIONER: -------------------- AUGUSTINE,AGED 45,BANK MANAGER, S/O.OUSEPH,KIZHAKECHOORICKAPRAYIL HOUSE, KOZHA KARA KURAVILANGAD VILLAGE, MEENACHIL TALUK. BY ADV. SRI.S.PRASANTH SRI.JAGADEESH LAKSHMAN RESPONDENT: --------------- PROF. CICILIAMMA JOSEPH AUSEPHPARAMBIL MEMORIAL TRUST NO.3255/2000,KURAVILANGAD, REPRESENTED BY MANAGING TRUSTEE PHILOMINA JOSEPH, RETD PROFESSOR, TRUST BUILDING NO.433/A/111,KOZHA.PO, KURAVILANGAD.685604. SMT.PROF.PHILOMINA JOSEPH(PARTY-IN-PERSON) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF O.S.NO.51 OF 2005 OF MUNSIFF'S COURT, PALA. EXT.P2 TRUE COPY OF THE ORDER IN I.A.NO.370 OF 2005 IN O.S.NO.51 OF 2005. EXT.P3 TRUE COPY OF THE ORDER IN I.A.NO.990 OF 2007 IN O.S.NO.51 OF 2005 AND O.S.NO.65 OF 2005. EXT.P4 & P4(a) TRUE COPY OF THE JUDGMENT AND DECREE IN O.S.NO.246 OF 1994 DATED 29.7.1996. EXT.P5 TRUE COPY OF O.S.NO.65 OF 2005 DATED NIL. EXT.P6 TRUE COPY OF THE WRITTEN STATEMENT DATED 30.6.2005. EXT.P7 & P7(a) TRUE COPIES OF THE COMMISSION REPORTS. EXT.P8 TRUE COPY OF CMA.NO.16 OF 2010 OF PALA SUB COURT. EXT.P9 TRUE COPY OF THE JUDGMENT OF PALA SUB COURT IN CMA.16/10. EXT.P10 TRUE COPY OF THE PAPER REPORT DATED 16.5.2007. EXT.P11 TRUE COPY OF THE COMPLAINT DATED 14.5.2007 SUBMITTED BEFORE POLICE. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 649 OF 2010 O ------------------------------------------------------ Dated this the 11th day of January, 2011 JUDGMENT The respondent filed O.S.No.51 of 2005 on the file of the Court of the Munsiff of Pala, against the petitioner and others for fixation of boundaries of the plaint schedule property and the property of defendants 1 and 2 and for injunction. The petitioner is the second defendant in the suit. The first defendant is the father of the second defendant. It is stated that the first defendant is no more. 2. There was an earlier suit between the predecessor-in- interest of the parties as O.S.No.246 of 1994. In that suit, the first defendant in the present suit was the plaintiff and the predecessor- in-interest of the respondent was the defendant. A decree was granted in favour of the plaintiff therein restraining the defendant therein from obstructing the plaintiff from drawing water from the well. In the present suit, namely, O.S.No.51 of 2005, the plaintiff stated that there was such a decree and no obstruction is caused to the drawing of water by defendants 1 and 2. O.P.(C) NO.649 OF 2010 :: 2 :: 3. I.A.No.370 of 2005 was filed by the plaintiff against the defendants for temporary injunction. Defendants 1 and 2, on the other hand, filed I.A.No.611 of 2005 for an interim order permitting them to make construction on the boundary of the well. Both those applications were disposed of by the trial court as per the order dated 21.5.2005. I.A.No.370 of 2005 was allowed and I.A.No.611 of 2005 was dismissed. The operative portion of the order reads as follows: “In the result, I.A.370 of 2005 is allowed as follows:- The defendants 1 and 2 and the 4th defendant are hereby restrained by a temporary injunction till the disposal of the suit from putting up kayyalas or other structures towards annexing portions of the plaint schedule property and committing encroachments in the said property. However, it is made clear that the temporary injunction in the above regard would no way affect the right of the decree holders in O.S.246/1994 to execute the decree in the said suit. So also the claim of the plaintiff in O.S.65/2005, will remain un -affected by the above order. I.A.611/2005 stands dismissed without prejudice to the right of the decree holders in O.S.246/94 to execute the said decree and the right of the plaintiffs in O.S.65/2005 to prosecute the said suit. There will be no order as to costs.” O.P.(C) NO.649 OF 2010 :: 3 :: 4. The respondent/plaintiff alleged that defendants 1 and 2 violated the order passed by the court below in I.A.No.360 of 2005 and made constructions around the well and placed a slab. She filed I.A.No.990 of 2007 for taking action against defendants 1 and 2 for having violated the order of injunction. Defendants 1 and 2 filed I.A.No.1133 of 2007 praying to dismiss I.A.No.990 of 2007 filed by the plaintiff. Both those applications were considered by the trial court and Ext.P3 order dated 19.8.2010 was passed. The trial court found that there is no evidence to conclude that the defendants violated the order. A contention was taken by the defendants that the offending construction was made by the local public and not by defendants 1 and 2. On the ground that there is no clear proof to show as to who did the offending construction, the court below found that defendants 1 and 2 cannot be directed to undo the same. However, it was held that the construction was made in violation of the order of temporary injunction. Accordingly, the trial court held that the status quo as on the date of filing of the suit is to be maintained. Accordingly, the plaintiff was permitted to restore the status quo as noted by the Commissioner in Ext.C1 report. 5. The Commissioner inspected the property immediately O.P.(C) NO.649 OF 2010 :: 4 :: after the suit was filed and submitted Ext.C1 report. There was another inspection by the Commissioner after filing I.A.No.990 of 2007. The Commissioner filed Ext.C2 report. From the Commissioner's reports, the court below held that the status quo as on the date of the suit was changed and it requires to be corrected by granting permission to the plaintiff to restore the status quo as on the date of filing of the suit. 6. Defendants 1 and 2 challenged the order passed by the trial court in appeal as C.M.A.No.16 of 2010. The appellate court considered the facts and circumstances of the case and concurred with the view taken by the trial court. The court below also held that by the offending construction, the persons who are benefited are defendants 1 and 2. It was also found that the construction was unlawful and contrary to the interim injunction passed by the trial court. 7. The court below considered all the relevant aspects and held that the construction was made in violation of the order of temporary injunction. This is a finding of fact. It was also found by the trial court that there is no clear evidence to find that the violation O.P.(C) NO.649 OF 2010 :: 5 :: was made by defendants 1 and 2. Taking into account the contention of defendants 1 and 2 that the construction was made by the local public, the court below held that since the construction was made in violation of the interim order, the plaintiff was entitled to protection and she was entitled to remove the offending construction and to restore the status quo as on the date of filing of the suit. There is no jurisdictional error or error of law in the order and judgment impugned. The findings of fact arrived at by the courts below cannot be interfered with in a petition under Article 227 of the Constitution of India. Even on the facts, I am of the view that the courts below were right in taking the view that the order of injunction was violated. For the aforesaid reasons, the Original Petition is dismissed. (K.T.SANKARAN) Judge ahz/