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2026 DAILYLAW 613 (KER)

Sherly v. Jojo Thomas

2026-05-21

T R Ravi

body2026
JUDGMENT : T.R. Ravi, J. The original petition has been filed seeking to modify Ext.P12 order in IA.No.23 of 2025 in OS.No.318 of 2024 by granting police protection to execute the order on the basis of Exts. C1 and C1(a). Heard the counsel for the petitioner and respondents. 2. The short facts of the case are as follows; The petitioner is the plaintiff in OS.No.318 of 2024. The suit is one for a permanent prohibitory injunction restraining the defendants and anybody under them from demolishing the Northern bund of the canal which situates on the Southern side of the plaint schedule properties and pumping water into the plaint schedule properties by placing a motor. Two properties are scheduled to the plaint as plaint A and B schedule properties. B schedule property is shown to be a paddy field. On 04.11.2024, the Munsiff Court, Mavelikkara passed an order in IA.No.1 of 2024 and IA.No.6 of 2024 in OS.No.318 of 2024, allowing IA.No.1 of 2024 in part and dismissing IA.No.6 of 2024. The defendants and persons claiming under them were restrained from demolishing the Northern bund of the canal situated on the Southern side of the scheduled properties and from pumping water into the plaint schedule properties till disposal of the suit. 3. The petitioner contends that the order of injunction was violated by the defendants. An application was filed seeking to restore the canal bund on the Southern side of the plaint A and B schedule properties to its prior status. The allegation in the affidavit in support of the said prayer is that the defendants demolished the southern canal bund and created a water channel into plaint A and B schedule properties and placed a huge wooden track into plaint A and B schedule properties by violating the injunction order. On 29.03.2024, the Munsiff Court, Mavelikkara passed an order in IA.No.11 of 2024 in OS.No 318 of 2024 finding that the order of injunction has been violated. The finding has been rendered based on Exts.C1, C1(a), C2 and C2(a) commission reports and sketches. Exts.C1 and C1(a) are report and sketch prepared ex parte at the time of filing of the suit. Exts.C2 and C2(a) report and sketch were prepared and filed pursuant to IA.No.13 of 2024. The finding has been rendered based on Exts.C1, C1(a), C2 and C2(a) commission reports and sketches. Exts.C1 and C1(a) are report and sketch prepared ex parte at the time of filing of the suit. Exts.C2 and C2(a) report and sketch were prepared and filed pursuant to IA.No.13 of 2024. In Exts.C2 and C2(a) report and sketch, it was reported that the bund situated on the Southern side of plaint A schedule property and on the Northern side of the ‘thodu’ is seen removed and a box is placed at the top of the bund and on the top of the box, 34 sacks of mud are placed. It is specifically noted that the bund is seen destroyed to the extent of 6 feet 5 inches length and 4 feet 9 inches breadth. The Court by Ext.P5 order, allowed the plaintiff to reinstate the bund situated on the southern side of plaint A schedule property to its original position as reported in Exts.C1, C1(a) report and plan in the presence and supervision of the learned Advocate Commissioner Adv.Sreeroop Govind, at the expense of the plaintiff. 4. According to the plaintiff, an attempt was made to restore the bund and the same was objected and in the above circumstances, a petition was filed seeking police assistance for effecting the order. Ext.P12 is the order in IA.No.23 of 2024 which had been filed seeking police protection for execution of the mandatory injunction order dated 29.03.2025. The Court permitted reinstatement of the bund on the southern side of the plaint A schedule property to its original condition as reported in Exts.C1 and C1(a) report and sketch in the presence and supervision of the Advocate Commissioner. However, a rider was added stating that the reinstatement of the bund shall be done without disturbing the ‘petty and para’ placed on the bund. The reasoning in the order is that the order dated 29.03.2025 only directs reinstatement of the bund and does not direct removal of the ‘petty and para’ placed on the bund. It is stated in the order that if ‘petty and para’ is ordered to be removed, it will result in stalling farming activities in the area. It is also stated in the order that the prayer to restrain the defendants from placing motor was not granted in the original injunction order. 5. The said reasoning is not justified. It is stated in the order that if ‘petty and para’ is ordered to be removed, it will result in stalling farming activities in the area. It is also stated in the order that the prayer to restrain the defendants from placing motor was not granted in the original injunction order. 5. The said reasoning is not justified. It can be seen from Ext.P5 order that the Court had considered three commission reports available in the case and specifically found that the bund on the southern side of plaint A schedule property had been destroyed. The commissioner has noted that after removing the bund, a box has been placed and on the top of the box, 34 sacks of mud has been placed. As such, the manner in which the bund had been destroyed has been clearly stated in the report. If the bund is to be restored, necessarily, the portion where it has been destroyed has to be reconstructed in the manner in which it was noted in Exts.C1 and C1(a) report. It is evident from the reports that at the time of the first inspection, there was no ‘petty and para’ in the bund nor any sacks of mud. As such, there was no justification to place a rider that the restoration of the bund shall be without disturbing the ‘petty and para’. Such a rider in fact amounts to a review of the earlier order. Such a review was not called for, particularly since the defendants had not challenged the said orders effectively. 6. It is submitted by the counsel for the respondents that Ext.P5 order has been challenged in CMA No.31 of 2025 before the District Court - I, Mavelikkara. However, it is admitted that no interim orders have been passed by the said Court till now. So long as Ext.P5 order is in force, it has to be given effect to, and if police help is required, such assistance shall also be provided for giving effect to an order of the Court. 7. In the above circumstances, the petitioner is entitled to relief. The original petition is allowed. So long as Ext.P5 order is in force, it has to be given effect to, and if police help is required, such assistance shall also be provided for giving effect to an order of the Court. 7. In the above circumstances, the petitioner is entitled to relief. The original petition is allowed. Ext.P3 order is modified by removing the sentence “Reinstatement of the bund shall be done without disturbing the petty and para.” It is made clear that this order will be subject to any orders that may be passed in CMA No.31 of 2025 by the District Court-I, Mavelikkara.