Kerala High Court
Manoj Bhasker vs Sasidharan Nair on 4 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
OP(C) NO. 2762 OF 2023
AGAINST OS 675/2022 OF PRINCIPAL MUNSIFF COURT, CHERTHALA
PETITIONER/COUNTER PETITIONER/DEFENDANT:
MANOJ BHASKER
AGED 39 YEARS
S/O BHASKARAN NAIR, CHIRAKKAL HOUSE, EZHUPUNNA
P.O,CHERTHALA,ALAPPUZHA,, PIN - 688537
BY ADV SIBI THOMAS JACOB
RESPONDENTS/PETITIONER/PLAINTIFF:
1 SASIDHARAN NAIR
AGED 64 YEARS
DIVA KRIPA FROM SHYAMALA MANDIRAM,EZHUPUNNA MURI,
EZHUPUNNA P.O,CHERTHALA,ALAPPUZHA,, PIN - 688537
2 THE ASSISTANT CONSERVATOR ( SOUGHT TO BE IMPLEADED )
SOCIAL FORESTRY DIVISION, MANIMALA ROAD, PONEKKARA,
EDAPPALLY, ERNAKULAM ( SOUGHT TO BE IMPLEADED )
BY ADVS.
FRIJO.K.S
ARAVIND AJITH(K/231/2016)
GIGEESH BABU(K/41/2021)
JOSEPH THOMAS M.(K/2350/2023)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C).No. 2762 of 2023
..2..
J U D G M E N T
Dated this the 4th day of January, 2024
The petitioner herein is the defendant in the
suit, O.S.No.675/2022, pending before the
Principal Munsiff Court, Cherthala. The petitioner
is aggrieved by Ext.P9 order, which directed
cutting and removal of a tree, standing in the
boundary dividing the plaintiff's property and the
defendant's property, for execution of which, a
Commission was also appointed.
2. Heard the learned counsel for the petitioner
and the learned counsel for the respondent.
3. The learned counsel for the petitioner submits
that, the tree in question is not lying
dangerously, so as to cause any harm to the
respondent/plaintiff. According to the petitioner,
the tree is standing in the defendant's property.
..3..
Ext.P9 order cannot be sustained is the submission
of the learned counsel for the petitioner.
4. These submissions were seriously refuted by
the learned counsel for the respondent/plaintiff.
Learned counsel had produced some photographs to
show that the tree in question is situated in the
property of the respondent/plaintiff. He also
relied upon Ext.P10 Commission Report, which
refers to the dangerous condition of the bottom
portion of the tree. According to the learned
counsel, Ext.P9 order suffers from no infirmity
and the tree in question has to be cut and
removed.
5. Having heard the learned counsel appearing on
both sides, this Court cannot endorse the course
adopted by the learned Munsiff, in arriving at a
conclusion that the tree in question has to be cut
and removed; and in appointing a Commissioner,
thereafter to supervise the work. Before the
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learned Munsiff, there was only an allegation made
by the respondent/plaintiff to the effect that the
defendant/petitioner had applied some chemical to
the tree, so as to weaken its root and timber,
making it lying dangerously allegedly. The said
fact ought to have been ascertained, before
arriving at a conclusion that the tree in question
is to be cut and removed. The Court ought to have
appointed a Commissioner, with the assistance of
an expert, to ascertain whether the tree in
question is standing in a dangerous condition and
that its fall may endanger the plaintiff's
residential building in the plaint schedule
property. Further, the Commission should also have
been deputed to ascertain the rival contentions as
to where precisely the tree is standing; whether
it is within the plaintiff's property or within
the defendant's property. If it could be clearly
found that the tree is standing in the plaintiff's
property, then the removal of the tree does not
require any further consideration. Per contra, if
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it is standing in the defendant's property, then
the question as to whether it is lying
dangerously, so as to endanger the plaintiff and
his interest has to be gone into. Without this
exercise being done, Ext.P9 order cannot be
sustained.
6. In the circumstances, Ext.P9 order will stand
set aside. The matter is remitted to the Court
below for proceeding with the case in accordance
with the directions contained in this judgment. In
view of the apprehension raised by the learned
counsel for the petitioner, this Court directs the
learned Munsiff to expedite the appointment of the
Commissioner, as also, the expert, if any
suggested by the plaintiff, or for that matter,
the defendant; and to pass fresh orders in
I.A.No.3/2023 in the suit expeditiously, at any
rate, within a period of one month from the date
of receipt of a copy of this judgment.
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The Original Petition is disposed of as above.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
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APPENDIX OF OP(C) 2762/2023
PETITIONER EXHIBITS
Exhibit P1 COPY OF THE PLAINT IN O.S NO 675/2022
MUNSIFF COURT CHERTHALA
Exhibit P2 COPY OF THE WRITTEN STATEMENT IN O.S NO
675/2022 MUNSIFF COURT CHERTHALA DATED
22/2/2023
Exhibit P3 COPY OF THE INTERLOCUTORY APPLICATION
FOR TEMPORARY INJUNCTION IN IA NO.
1/2022 IN OS NO. 675/2022 MUNSIFF COURT
CHERTHALA
Exhibit P4 COPY OF COUNTER IN IA NO. 1/2022 IN OS
NO. 675/2022 MUNSIFF COURT CHERTHALA
DATED 14/3/2023
Exhibit P5 COPY OF THE INTERLOCUTORY APPLICATION
FOR APPOINTMENT OF ADVOCATE
COMMISSIONER FOR LOCAL INSPECTION IN IA
NO 2/2022 IN OS 675/2022 PENDING BEFORE
THE MUNSIFF'S COURT CHERTHALA DATED
21/12/2022
Exhibit P6 COPY OF THE COMMISSION REPORT FILED BY
THE ADVOCATE COMMISSIONER AFTER LOCAL
INSPECTION DATED 16/1/2023
Exhibit P7 TRUE COPY OF THE I.A. NUMBERED 3 /2023
FILED UNDER SECTION 151 OF CIVIL
PROCEDURE CODE DATED 23.02.2023
Exhibit P8 TRUE COPY OF THE COUNTER FILED BY THE
PETITIONER IN I.A. NUMBERED 3 /2023
Exhibit P9 TRUE COPY OF THE ORDER DATED 24.11.2023
Exhibit P10 COPY OF THE COMMISSION REPORT FILED BY
THE SECOND ADVOCATE COMMISSIONER
Exhibit P11 TRUE COPY OF THE OBJECTION TO THE
COMMISSION REPORT FILED BY THE
PETITIONER AGAINST EXT. P10
Exhibit P12 A TRUE COPY OF THE ORDER DATED
20/12/2023 IN I.A. NO. 3/2023 IN O.S.
NO. 675/2022 PASSED BY THE PRINCIPAL
MUNSIFF COURT, CHERTHALA
