Partly allowed

A.P.Padmanabhan v. Soudamini

Kerala HC19 Sept 2012OP(C)/727/2012

Case brief

AI extract

What is this about?

This order reviews an order permitting a petitioner to erect a barbed wire fence. The High Court set aside the permission for the fence as it deviated from the status quo ante but allowed reconstruction of the original earthern bund under the Advocate Commissioner's supervision.

What did the court decide?

Impugned order permitting barbed wire fence set aside; Plaintiff permitted to reconstruct an earthern bund under supervision of Advocate Commissioner.

A.P.Padmanabhan Vs Soudamini — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934

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OP(C).No. 727 of 2012 (O)

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OS.743/2010 of ADDL.M.C.,KOZHIKODE-II

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PETITIONER(S):

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A.P.PADMANABHAN NAMBOODIRI,, AGED 52 YEARS

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S/O.CHERIYA GOVINDAN NAMBOODIRI

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ERANNAMPARAMBATH ILLATH, PERUVAYAL, KOZHIKODE.

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A.P.SUKUMARAN,

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S/O.CHERIYA GOVINDAN NAMBOODIRI

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ERANNAMPARAMBATH ILLATH, PERUVAYAL, KOZHIKODE.

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SAVITHRI ANDERJANAM

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W/O.CHERIYA GOVINDAN NAMBOODIRI

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ERANNAMPARAMBATH ILLATH, PERUVAYAL, KOZHIKODE.

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BY ADVS.SRI.K.MOHANAKANNAN

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SMT.A.R.PRAVITHA

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SMT.D.S.THUSHARA SMT.RASHMI RAVINDRAN

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RESPONDENT(S):

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SOUDAMINI D/O.JANAKI AMMA RESIDING AT MELECHANDANAMPAPRAMBATH CHEROOPA AMSOM, MALAPPURAM DESOM, KOZHIKODE-673661

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN O.P.(C) NO.727 OF 2012

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PETITIONER(S) EXHIBITS

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EXHIBIT-P1. TRUE COPY OF THE PLAINT IN OS 743/2010 OF MUNSIFF COURT, KOZHIKODE DATED 7.10.2010.

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EXHIBIT-P2. TRUE COPY OF THE WRITTEN STATEMENT FILED BY THESE DEFENDANTS/PETITIONERS DATED 25.11.2010.

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EXHIBIT-P3. TRUE COPY OF THE APPLICATION FOR INJUNCTION WAS FILED BY THE PLAINTIFF AS IA 4328/2010 DATED 7.10.2010.

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EXHIBIT-P3(a).TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN IA 4328/10.

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EXHIBIT-P4. TRUE COPY OF THE ORDER OF INJUNCTION IN IA 4328/2010 DATED 8.10.2010.

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EXHIBIT-P5. TRUE COPY OF THE REPORT AND SKETCH DATED 17.10.2010 IN OS 743/2010.

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EXHIBIT-P6. TRUE COPY OF THE APPLICATION TO SET ASIDE THE COMMISSION REPORT IN OS 743/2010.

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EXHIBIT-P7. TRUE COPY OF THE IA 4785/2010 IN OS 743/2010 DATED 1.11.2010.

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EXHIBIT-P8. TRUE COPY OF THE IA 4914/2010 DT.8.11.2010.

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EXHIBIT-P9. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS IN IA 4914/2010 IN OS 743/2010 DT.25.11.2010.

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EXHIBIT-P10.TRUE COPY OF THE REPORT OF COMMISSIONER DATED 6.12.2010 IN OS 743/2010.

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EXHIBIT-P11.TRUE COPY OF THE IA 5316/2010 IN OS 743/2010 SEEKING AN INSPECTION BY THE COMMISSIONER APPLICATION DATED 4.12.2010.

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EXHIBIT-P12.TRUE COPY OF THE APPLICATION AS IA 230/2011 DATED 7.1.2011 IN OS 743/2010.

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EXHIBIT-P13.TRUE COPY OF THE REPORT DT. 12.1.2011 FILED BY THE COMMISSIONER IN OS 743/2010.

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EXHIBIT-P14.TRUE COPY OF THE AFFIDAVIT AND PETITONS FILED IN OS 743/2010 DATED 4.3.2011.

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EXHIBIT-P15.TRUE COPY OF THE AFFIDAVIT FILED IN IA 4661/2011 DATED 19.11.2011 IN OS 743/2010.

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EXHIBIT-P16.TRUE COPY OF THE COUNTER IN THE IA 4661/2011 IN OS 743/2010 DATED 25.11.2011.

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EXHIBIT-P17.TRUE COPY OF THE ORDER IN IA 4914/2010 DATED 18.1.2012 IN OS 743/2010.

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//TRUE COPY//

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P.S TO JUDGE.

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V.CHITAMBARESH, J.

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O.P.(C) No. 727 of 2012

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Dated this the 19^th day of September, 2012

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J U D G M E N T

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The court below has by Ext.P4 order granted an adinterim order of injunction in favour of the plaintiff restraining the defendants and their men from trespassing into the plaint schedule property and also from altering its physical features until further orders. The order dated 8.10.2010 so passed in I.A.No.4328 of 2010 in O.S.No.743 of 2010 on the file of the court of the II Additional Munsiff of Kozhikode has not been varied till date.

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The Advocate Commissioner has in Ext.P5 report

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dated 17.10.2010 noticed the existence of an earthern bund separating the plaint schedule property and the property of the defendants. The allegation of the plaintiff is that the defendants unauthorisedly demolished the bund on 30.10.2010 in violation of the order of injunction aforequoted. The same Advocate Commissioner has in Ext.P10 report dated 6.12.2010 noticed the demolition of the bund of length 78 meters that existed earlier separating the plaint schedule property and the property of the

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O.P.(C) No.727 of 2012

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defendant.

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Ext.P5 report of the Advocate Commissioner dated

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17.10.2010 was remitted who has since filed Ext.P13 report dated 12.1.2011 reiterating Ext.P10 report dated 6.12.2010. The plaintiff sought for restoring the statusquo ante by reconstructing the earthern bund or by erecting barbed wire along the boundary of the property by Ext.P8 (I.A.No.4914 of 2010). The court below has by the order impugned permitted the plaintiff to erect a barbed wire fence on the southern side of the property where the old ridge was in existence under the supervision of the Advocate Commissioner.

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It is beyond dispute that what was in existence earlier was not a barbed wire fence but an earthern bund separating the plaint schedule property and the property of the defendants. The court below can at best permit restoration of the status quo ante by permitting the plaintiff to erect a bund as above. The direction in the order impugned permitting the plaintiff to erect a barbed wire fence instead of earthern bund cannot therefore be sustained. Ext.P17 order in I.A.No.4914 of 2010 is therefore set aside to the limited extent.

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O.P.(C) No.727 of 2012

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I however permit the plaintiff to reconstruct an earthern bund separating the plaint schedule property and the property of the defendants in the same place as was noticed earlier by the Advocate Commissioner. The bund shall be erected under the supervision of the Advocate Commissioner to ensure that its location is not changed to the detriment of any of the parties to the suit. The question whether the expenses incurred for this exercise should be recovered from any one of the parties would be considered at the time of disposal of the suit.

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The court of the Additional Munsiff-II, Kozhikode shall make every endeavour to dispose of O.S.No.743 of 2010 pending on its file within a period of six months from the date of receipt of a copy of this judgment.

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The original petition is disposed of as above. No

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costs.

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V.CHITAMBARESH, Judge.

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nj.

A.P.Padmanabhan v. Soudamini

Case brief

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A.P.Padmanabhan v. Soudamini

Case brief

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