IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 OP(C).No. 396 of 2010(O) ----------------------------------- [CMA.NO.7/2010 OF THE ADDITIONAL DISTRICT COURT, NORTH PARAVUR, IA .NO.1177/2009 IN OS.NO.157/2009 OF THE SUB COURT, PERUMBAVOOR] .................... PETITIONERS: --------------------- 1. JOSE ,AGED 59,S/O.OUSEPH GEORGE, KOYIKKARA HOUSE,THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE,PIN- 683 562. 2. THRESIAMMA,AGED 79,W/O.OUSEPH GEORGE, KOYIKKARA HOUSE,THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE,PIN- 683 562. 3. CHACKOCHAN,AGED 55,S/O.OUSEPH GEORGE, KOYIKKARA HOUSE,THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE,PIN- 683 562. 4. CLEETUS,AGED 50,S/O.OUSEPH GEORGE, KOYIKKARA HOUSE,THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE,PIN- 683 562. PETITIONERS 2 TO 4 ARE REPRESENTED BY 1ST PETITIONER, (WHO IS THE POWER OF ATTORNEY HOLDER). BY ADVS. SRI.GEORGEKUTTY MATHEW, SRI.S.DILEEP. RESPONDENTS: ------------------------ 1. VINCENT,AGED 70 YEARS,S/O.ULAHANNAN, KACHAPPILLY HOUSE,THAMACHARACHAL KARA , KIZHAKKAMBALAM VILLAGE,PIN 683 562. *(DIED, L.R'S IMPLEADED). 2. ISAHAC,AGED 58 YEARS,S/O.VARKEY, THURUTHUMMEL HOUSE,THAMACHARACHAL KARA , KIZHAKKAMBALAM VILLAGE,PIN 683 562. 3. JOSEPH,AGED ABOUT 75 YEARS, KOOTTUNGAL HOUSE,THAMACHARACHAL KARA , KIZHAKKAMBALAM VILLAGE,PIN -683 562. O.P.(C).NO.396/2010-O: 4. CICILY,AGED 50 YEARS,W/O.AUGUSTHY, THEKKANATHU HOUSE,THAMACHARACHAL KARA , KIZHAKKAMBALAM VILLAGE,PIN -683 562. 5. RENNY,AGED ABOUT 25 YEARS,D/O.AUGUSTHY, THEKKANATHU HOUSE,THAMACHARACHAL KARA , KIZHAKKAMBALAM VILLAGE,PIN 683 562. 6. PAULOSE,AGED 60 YEARS, S/O.ULAHANNAN,THURUTHUMMEL HOUSE, THAMACHARACHAL KARA ,KIZHAKKAMBALAM VILLAGE, PIN 683 562. 7. ALAMMA, AGED 60 YEARS, W/O. DEVASSY THOMA, KACHAPPILLY HOUSE, THAMACHARACHAL KARA, KIZHAKKAMBALAM VILLAGE, PIN – 683 562. 8. ELIKUTTY, AGED 60, W/O. DEVASSY ANTHONY, KACHAPPILLY HOUSE, THAMACHARACHAL KARA, KIZHAKKAMBALAM VILLAGE, PIN – 683 562. 9. RAJAPPAN, AGED ABOUT 50 YEARS, S/O. NARAYANAN, PULIKKAL HOUSE, THAMARACHARACHAL KARA, KIZHAKKAMBALAM VILLAGE, PIN – 683 562. 10. E.V. VARGHESE, AGED 70 YEARS, FATHER'S NAME NOT KNOWN, ETHAKKAN HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM VILLAGE, PIN – 683 562. 11. BENNY, AGED 40 YEARS, S/O. MATHEW, PALATHINKAL HOUSE, THAMACHARACHAL KARA, KIZHAKKAMBALAM VILLAGE, PIN – 683 562. 12. BABU, AGED ABOUT 45 YEARS, S/O. JAMES, KARAKKUNNEL HOUSE, THAMACHARACHAL KARA, KIZHAKKAMBALAM VILLAGE, PIN – 683 562. *ADDITIONAL RESPONDENTS 13 TO 17 IMPLEADED: 13. THRESIAMMA, AGED ABOUT 65, W/O. VINCENT, KACHAPPILLAY HOUSE, THAMACHARACHALA KARA, KIZHAKKAMBALAM VILLAGE, PIN CODE – 683 562. 14. JOY, AGED ABOUT 40, S/O. VINCENT, KACHAPPILLAY HOUSE, THAMACHARACHALA KARA, KIZHAKAMBALAM VILLAGE, PIN CODE – 683 562. 15. JAIMON, AGED ABOUT 38, S/O. VINCENT, KACHAPPILLAY HOUSE, THAMACHARACHALA KARA, KIZHAKAMBALAM VILLAGE, PIN CODE – 683 562. O.P.(C).NO.396/2010-O: 16. MARY, AGED ABOUT 35, D/O. VINCENT, KACHAPPILLAY HOUSE, THAMACHARACHALA KARA, KIZHAKAMBALAM VILLAGE, PIN CODE – 683 562. 17. SISTER ANEES, AGED ABOUT 32, D/O. VINCENT, KACHAPPILLAY HOUSE, THAMACHARACHALA KARA, KIZHAKAMBALAM VILLAGE, PIN CODE – 683 562. *ADDITIONAL RESPONDENTS 13 TO 17 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT VIDE ORDER DATED 28/07/2011 IN I.A. NO. 2887/2011. R3 BY ADVS. SRI.JAICE JACOB, SRI.G.G.MANOJ, SRI.P.M.BENZIR, R4 & R5 BY ADVS. SRI.B.GOPAKUMAR, SMT.CHINCY GOPAKUMAR, R11 BY ADVS. SRI.S.RADHAKRISHNAN, SRI. S. RAJMOHAN, R13 TO R17BY ADV. SRI.JIJO THOMAS. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON TH E SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.396/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE POWER OF ATTORNEY DTD. 15/10/2009 EXECUTED BY THE PETITIONERS 2 TO 4. EXT.P.2: COPY OF THE PLAINT IN O.S. NO. 157/2009, ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.P.3: COPY OF THE I.A. NO. 1177/2009 IN O.S. NO. 157/2009, ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.P.4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE R.1. EXT.P.5: COPY OF THE COUNTER AFFIDAVIT FILED BY THE R.3. EXT.P.6: COPY OF THE COUNTER AFFIDAVIT FILED BY THE R.11. EXT.P.7: COPY OF THE ORDER PASSED BY THE SUB COURT, PERUMBAVOOR. EXT.P.8: COPY OF THE ORDER PASSED IN I.A. NO. 93/2009 BY THE ADDITIONAL DISTRICT COURT, NORTH PARAVUR. EXT.P.9: COPY OF THE JUDGMENT PASSED IN C.M.A. NO. 7/2010 BY THE ADDITIONAL DISTRICT COURT, NORTH PARAVUR. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE ORDER NUMBER KDS 904/10/A3 DTD. 06/03/2010 ISSUED BY THE RDO, MUVATTUPUZHA. EXT.R.13(A): COPY OF THE WRITTEN STATEMENT FILED BY THE R.1. IN O.S. NO.157/2009 ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.R.13(B): COPY OF THE COUNTER AFFIDAVIT FILED BY THE R.1. IN I.A. NO.1177/2009 IN O.S. NO.157/2009 ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.R.13(C): COPY OF THE COMMISSION REPORT IN I.A. NO. 1176/2009 IN O.S. NO. 157/2009 ON THE FILE OF THE SUB COURT, PERUMBAVOOR. EXT.R.13(D): COPY OF THE SALE DEED NO.2582/1970 OF AIKKARANAD SRO. EXT.R.13.(E): COPY OF THE TAX PAID RECEIPT DTD. 25/09/1974. EXT.R.13(F): COPY OF THE DOCUMENT NO.492/1969 OF AIKKARANAD SRO. EXT.R.13(G): COPY OF THE DOCUMENT NO.3246/1967 OF AIKKARANAD SRO. EXT.R.13(H): COPY OF THE RESURVEY SKETCH OF THE PROPERTY IN RE.SY.NO.265/3 OF KIZHAKKAMBALAM VILLAGE. O.P.(C).NO.396/2010-O: EXT.R.13(I): COPY OF THE TAX PAID RECEIPT DTD. 05/11/2009. EXT.R.13(J): COPY OF THE TAX PAID RECEIPT DTD. 05/11/2009. EXT.R.13(K): COPY OF THE TAX PAID RECEIPT DTD. 05/11/2009. EXT.R.13(L): COPY OF THE TAX PAID RECEIPT DTD. 05/11/2009. EXT.R.13(M): COPY OF THE TAX PAID RECEIPT DTD. 05/11/2009. EXT.R.13(N): COPY OF THE THANDAPER EXTRACT PERTAINING TO THANDAPER NO.883 IN THE NAME OF THE GEORGE. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.396 of 2010 --------------------------------------- Dated this 28th day of July, 2011 JUDGMENT Learned counsel for respondent No.3 takes notice on behalf of respondent Nos.2 and 10 as well. Others are either served but does not appear or are represented by counsel. 2. Petitioners are plaintiffs in O.S.No.157 of 2009 of the Court of learned Sub Judge, Perumbavoor and the appellants in C.M.A.No.7 of 2010 of the Court of learned Additional District Judge, North Paravur. Petitioners sued respondents 2 to 12 and the deceased first respondent, (predecessor in respect of respondents 13 to 17) for a decree for prohibitory injunction to restrain them from trespassing into the plaint A schedule property, taking forcible possession, taking yield or committing waste therein and for recovery of possession of plaint B to H schedules. Petitioners alleged that 4.49acres in survey 272/1/B originally belonged to the paternal grandfather of petitioners 1, 3 and 4, one Ouseph as per document No.294/1084 and on the death of the said Ouseph the said property devolved on only his son George. On the death of George, petitioners claimed to have got the said property. It is alleged that respondents 2 to 12 and O.P(C).No.396 of 2010 -: 2 :- the deceased first respondent trespassed into plaint B to H schedules and hence the suit claiming reliefs as aforesaid. Petitioners filed I.A.No.1177 of 2009 for an order of temporary injunction against trespass or commission of waste in the schedule properties. Learned Munsiff disallowed the prayer in view of inability of the Advocate Commissioner to identify the suit properties with reference to Ext.A1, document produced by petitioners. That order was confirmed by the learned Additional District Judge in C.M.A.No.7 of 2010. The said order and judgment are under challenge. Learned counsel for petitioners contended that what is prayed for in this proceeding is only an order directing respondents not to commit waste in the suit properties by removing the earth from the said properties which would affect the present lie and condition of the properties and cause difficulty in identifying the properties as well. 3. On the death of the first respondent, respondents 13 to 17 are impleaded as his legal representatives. Learned counsel for third respondent has submitted that plaint B schedule belongs to and is in the possession of the third respondent. It is also stated that in the said property, third respondent wants to construct a residential building and to facilitate that, the property O.P(C).No.396 of 2010 -: 3 :- has to be levelled up for which he has obtained permission from the Revenue Divisional Officer. Learned counsel also pointed out that by order dated December 09, 2010 this Court has made it clear that the interim order passed by this Court will not prevent the third respondent from constructing building in plaint B schedule and levelling the said land for that purpose subject to permission from the appropriate authorities. Learned counsel for respondents 13 to 17 submitted that the old rubber trees in the 2.21 acres in survey 265/3 of Kizhakkambalam village (forming part of plaint A schedule) which belongs to and is in the possession of respondents 13 to 17 have been given for slaughter tapping. Those old rubber trees are to be removed and new plantation has to be effected in the said property. It is prayed that agricultural operations in the said property might not be prevented. Counsel for respondents 4 and 5 submits that their entitlement and possession is in respect of a portion of plaint A schedule. Learned counsel for petitioners has submitted that presently, petitioners have no possession of plaint A schedule as well as found by the courts below. 4. Having regard to the circumstances stated, I am inclined to think that there should be a direction to respondents 2 O.P(C).No.396 of 2010 -: 4 :- to 17 not to commit waste in the property, at the same time permitting the third respondent to construct building in plaint B schedule and other respondents to carry out normal agricultural operations in the portion of property in their respective possession. Resultantly this original petition is allowed in part in the following lines: (i) Respondents 2 to 17 are directed not to commit waste in the suit properties until disposal of the suit by removing earth therefrom or in any other manner. (ii) It is made clear that this order will not prevent the third respondent from levelling the plaint B schedule in accordance with law and putting up residential building in the said property. (iii) It is also made clear that the direction not to commit waste in the property will not prevent respondents from effecting or carrying out agricultural operations in the respective properties they claim to be in possession. (iv) Respondents 13 to 17 are permitted to cut and remove the old rubber trees and effect new plantation in the 2.21 acres they claim to be in possession. (v) Respondents 2 to 17, other than third respondent however directed not to remove earth from the respective property in their possession. O.P(C).No.396 of 2010 -: 5 :- The order of the learned Munsiff on I.A.No.1177 of 2009 as confirmed by the learned Additional District Judge in C.M.A.No.7 of 2011 will stand modified as above. (THOMAS P JOSEPH, JUDGE) Sbna/-