PAULSON Vs. SUSY KISHOR

JUDGEMENT

(1.) DEFENDANTS in O.S.No.1066 of 2011 of the Court of learned Principal Munsiff, Thrissur and appellants in C.M.A.No.60 of 2011 of the Court of learned Additional District Judge, Thrissur are the petitioners before me challenging Exts.P9 and P9(a), orders dated 23.05.2011 and 25.05.2011 on I.A.No.1636 of 2011 in C.M.A.No.60 of 2011.

(2.) PARTIES are closely related. Respondent/plaintiff claimed absolute right and possession of plaint A schedule items (3, in number) and right of access through plaint B schedule over which respondent claimed either a right of easement by grant or necessity (as per pleading). It is also the case of respondent that herself and predecessors-in-interest were using the way for access to plaint A schedule and while so, as agreed by both sides the way was shifted to the present site (described as plaint B schedule). It is while so, that dispute arose between the parties concerning right, enjoyment and possession of the respective items. Respondent wanted a decree for prohibitory injunction against petitioners trespassing into plaint A schedule or causing hindrance to her using plaint B schedule for access to the plaint A schedule. Learned Munsiff granted an order of temporary injunction which petitioners challenged in C.M.A.No.60 of 2011 and moved I.A.No.1636 of 2011 for stay of operation of the order. Learned Additional District Judge passed Ext.P9, order dated 23.05.2011 directing parties to maintain status quo as on the date of filing of the appeal, till 25.05.2011. Exts.P9(a), order was passed on the same application on 25.05.2011 directing that Ext.P9, order dated 23.05.2011 is modified in that parties are directed to maintain status quo as on date of the appeal, petitioners are restrained from entering the plaint A schedule (1.50acres) and respondent was permitted to make use of plaint B schedule way without obstruction. Exts.P9 and P9(a), orders are under challenge at the instance of petitioners/defendants.

(3.) SINCE the matter is under consideration in the C.M appeal before learned Additional District Judge it is not necessary for me to go into contentious issues. What is required is to make only some arrangement for the time being so that as petitioners claimed, the nut mug seedlings do not get dried up and lost and it is profitably put to use. The reports of the Advocate Commissioner referred to me show that at the time of the first visit, Commissioner had seen a nylon net extending east west through plaint A schedule items with plantain planted on the northern side and nut mug seedlings kept under the name and style "Nirappel Gardens" on the southern side. But at the time of second inspection Commissioner could not see that nylon net, instead at that place Commissioner found a plastic twain and arecanut rafters, extending east west with plantain planted on the northern side and nut mug seedlings kept in the nursery on the southern side. The question whether the nursery belonged to the petitioners as claimed by them or it is the property of respondent being part of plaint A schedule items are matters which the trial court has to decide. Having regard to the circumstances above stated and having heard learned counsel on both sides I am inclined to think that petitioners could be permitted to deal with nut mug seedlings in the nursery on the southern side of the plastic twain and the arecanut rafters. But, that can only be subject to conditions and subject to the result of the suit. Having regard to the extent of the nut mug seedlings involved, petitioners have to deposit a sum of `.1,00,000/- in the trial court which shall be subject to the result of the suit. Resultantly this original petition is disposed of in the following lines: