IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 OP(C).NO. 3361 OF 2011(O) -------------------------------------- OS.403/2010 OF PRINCIPAL MUNSIFF,ALAPPUZHA PETITIONER: -------------------- M.REGHUNATH,S/O.MADHAVAN,AGRICULTURIST, AGED 64, RESIDING AT MANGALAPPURATH (SANGEETHA), PUNNAPRA MURI,PUNNAPRA VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.R.AZAD BABU RESPONDENT(S): ------------------------ M.RAJKUMAR,S/O.MADHAVAN,AGED 43, MANGALATH,WARD NO.9,PUNNAPRA GRAMA PANCHAYAT, PUNNAPRA VILLAGE,AMBALAPUZHA TALUK, PUNNAPRA P.O, ALAPPUZHA 688 006. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.3361 OF 2011 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1. TRUE COPY OF THE PLAINT DATED 2.6.2010 IN OS 403 OF 2010 ON THE FILES OF PRINCIPAL MUNSIFF, ALAPPUZHA. EXHIBIT P2. TRUE COPY OF THE IA NO. 1843 OF 2010 DATED 2.6.2010 FOR INTERIM INJUNCTION. EXHIBIT P3. TRUE COPY OF THE ORDER DATED 10.6.2010 IN IA NO.1843 OF 2010. EXHIBIT P4. TRUE COPY OF WRITTEN STATEMENT DATED 1.1.2011 FILED BY THE RESPONDENT. EXHIBIT P5. TRUE COPY OF THE COMMISSIONERS REPORT DATED 20.11.2010 SUBMITED BY ADVOCATE COMMISSIONER. EXHIBIT P6. TRUE COPY OF THE JUDGMENT DATED 6.4.2011 IN OPC NO.1359 OF 2011 OF THIS HONOURABLE COURT. EXHIBIT P7. TRUE COPY OF THE I.A 1610 DATED 30.05.2011 IN O.S NO. 403 OF 2010 OF MUNSIFF'S COURT, ALAPPUZHA. EXHIBIT P8. TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENT IN THE ABOVE I.A. EXHIBIT P9. TRUE COPY OF THE ORDER DATED 9.8.2011 IN I.A NO. 1610 OF 2011. RESPONDENT(S)' EXHIBITS: NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3361 of 2011 ==================================== Dated this the 25th day of October, 2011 J U D G M E N T Respondent appears through counsel. 2. Plaintiff in O.S. No.403 of 2010 of the court of learned Principal Munsiff, Alappuzha challenges Ext.P7, order. The dispute is between two brothers. Petitioner filed the suit for prohibitory injunction to restrain the respondent from trespassing into and preventing petitioner from carrying out agricultural operations in about five acres of paddy land scheduled in the plaint. According to the petitioner, after institution of the suit harvesting is being done through commission. In Ext.P6, judgment this Court directed that in future the right to cultivate and harvest crops in the suit property shall be auctioned among petitioner and the respondent. Petitioner filed Ext.P7, application to auction the right to cultivate and harvest crops in the suit property. That application was resisted by the respondent. Respondent contended that he started cultivation in the suit property on 10.04.2011 and that agricultural operations are in progress. He contended that petitioner has not complied with the directions contained in Ext.P6, judgment. O.P(C) No.3361 of 2011 -: 2 :- Learned Munsiff dismissed Ext.P7, application by Ext.P9, order stating that petitioner has not produced materials to show that agricultural operations were not started on the date of filing Ext.P7, application. Learned Munsiff also directed that both sides shall not start fresh cultivation in the plaint schedule property without obtaining right as directed in Ext.P6, judgment. 3. Learned counsel submitted that paddy is cultivated in the suit property, it is ripe for harvesting and that if it is not done within a few days, the grains will fall down which would result in loss. Learned counsel for respondent has asserted the contentions respondent has raised in the trial court. 4. Having heard learned counsel on both sides I am inclined to think that immediate steps are required to preserve the crops which are already in the suit property from destruction. The proper course is to appoint an Advocate Commissioner to ensure harvesting of the crop in the suit property, at the expense of petitioner. Commissioner has to deposit the proceeds of sale of paddy and hay in the court below so that the said amount can be given to the ultimate winner in the suit. So far as the right to cultivate and harvest in the suit property in future is concerned learned Munsiff shall auction it O.P(C) No.3361 of 2011 -: 3 :- between the parties as directed in Ext.P6, judgment. Resultantly, Original Petition is disposed of as follows: (a) It is directed that the paddy crops in the suit property shall be harvested through an Advocate Commissioner to be appointed by the court below at the expense of petitioner. (b) It is open to the learned Munsiff to appoint the same Advocate Commissioner for harvesting (who has done the work earlier) if he is available. (c) The Advocate Commissioner is directed to maintain proper accounts for the expenses incurred for harvesting and deposit the proceeds of sale of grain and hay (less the expenses) in the court of learned Munsiff. (d) As to whom the amount so deposited should go, shall be decided by the learned Munsiff O.P(C) No.3361 of 2011 -: 4 :- after trial of the suit. (e) Learned Munsiff shall fix the batta to the Advocate Commissioner and payable by petitioner. (f) Learned Munsiff shall direct petitioner to deposit a reasonable sum towards preliminary expenses of the Commissioner for effecting the harvest. (g) So far as the right to cultivate and harvest in the suit property in future is concerned, learned Munsiff shall comply with the directions in Ext.P6, judgment. THOMAS P. JOSEPH, JUDGE. vsv