IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28850 of 2008(H)
1. BADARUDEEN,
... Petitioner
Vs
1. MANSOORUDEEN,
... Respondent
2. S.I. OF POLICE,
For Petitioner :SRI.R.KRISHNA RAJ
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :13/11/2008
O R D E R
K.P. BALACHANDRAN, J.
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W.P(c) No. 28850 of 2008
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Dated this the 13th day of November, 2008
JUDGMENT
Petitioner is the plaintiff in O.S. No.84 of 2007 on the file of the
Munsiff’s Court, Kottarakara. It is submitted that the suit was for a
decree for permanent prohibitory injunction as the defendant obstructed
cutting and removing of the Manjiam trees from the schedule property.
The court passed Exhibit P1 order granting injunction on the following
lines.
“And whereas the court having heard the counsel
for the plaintiff / petitioner and passed an order of
temporary injunction restraining the defendant from
trespassing into the plaint schedule property and from
making any obstruction to the plaintiff in taking yields
from the plaint schedule property or from committing
any waste or mischief in the plaint schedule.
But it is made clear that this exparte order of
injunction is not a license for cutting any trees in the
W.P(c) No. 28850/2008
2
disputed portion or putting up a new boundary.”
2. It is the grievance of the petitioner that despite granting of
injunction, the defendant resisted the cutting and removing of the
Manjiam trees and therefore he sought appropriate orders by filing I.A.
No.1670 of 2007 in the suit and the court below vide Exhibit P3
impugned order did not grant any police protection as prayed for, but
directed the petitioner/plaintiff that if there is any violation, he can file
application under Order 39 Rule 2 A of C.P.C. It can be seen from
Exhibit P1, that the injunction granted was for restraining the
defendant from trespassing into the schedule property and from making
any obstruction to the plaintiff in taking yield from the schedule
property or from committing any waste or mischief in the plaint
schedule property. According to counsel for petitioner this injunction
enables him to cut and remove the Manjiam trees in the schedule
property as that is one of the manner of enjoyment of the schedule
property by taking yield. I fail to agree with the arguments so
advanced. However, in the second limb of Exhibit P1 order, it has been
made clear that the exparte order of injunction is not a licence for
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3
cutting any trees in the disputed portion or putting up a new boundary.
According to the learned counsel for petitioner, disputed portion is not
a portion of the scheduled property. While appreciating the first limb,
he says that injunction was enabling him to cut and remove the trees,
and that is one of the methods of enjoyment of the property. At the next
breath, he says that cutting and removing of trees are not from the
schedule property. If that is so, no relief can be granted from the trial
court in the suit as relief can be granted in relation to the schedule
property only. No police protection can be granted to enable the
cutting of the trees either from the schedule property or from any other
property. This writ petition is ill-conceived and it is dismissed.
K.P. BALACHANDRAN, JUDGE
scm