IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 739 of 2008()
1. K.M.SIVADASAN, S/O. KUNHIKANNAN NAMBIAR
... Petitioner
2. T.P.MOLLY, W/O. SIVADASAN, AGED 39 YEARS
Vs
1. T.P.GENGADHARAN, S/O. GOVINDAN NAMBIAR,
... Respondent
For Petitioner :SRI.R.SURENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :07/10/2008
O R D E R
V. RAMKUMAR, J.
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C.R.P.No.739 of 2008
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Dated this the 7th day of October, 2008
ORDER
Heard both sides.
2. The defendants in O.S.No.433 of 2005 on the file of the
Munsiff’s Court, Taliparamba are the revision petitioners. The said
suit which was instituted by the respondent herein was one for a
perpetual injunction restraining the defendants from obstructing
the plaintiff from using the plaint B schedule road for the beneficial
enjoyment of the plaint A schedule property admeasuring 1.60
acres by having access to and from the Chooliyad-Irikkur road on
the north. The plaintiff claimed the right to use the Plaint B
Schedule property as a way on the basis of an easement by
prescription even though no declaration of the said right was
prayed for in the suit. The plaintiff claimed his exclusive right over
the Plaint A Schedule Property as per Ext.A1 partition deed dated
11.3.85 eventhough he claimed possession over the same as per
Ext.B11 Registered Dhana Nischaya Adharam dated 26.6.81. The
plaint contains a specific averment that the plaint B schedule
property does not belong to the defendants eventhough the right to
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use the same is claimed an easement prescription.
2. A Commission was taken out before the trial court and
going by the report and plan of the Commissioner the plaint A
schedule property admeasuring 1.64 acres is situated to the south
of the defendant’s property and the plaint B schedule strip of land
passes along the eastern side of the defendant’s property and goes
northwards to reach the Chooliyad-Irikkur road running east-west.
The Commissioner also noticed a pathway running along the
southern boundary of the plaint A schedule property.
3. The learned Munsiff after trial as per judgment and
decree dated 31.7.08 dismissed the suit holding that eventhough
the plaint A schedule property was acquired by the plaintiff in
1985, that plaint B schedule way came into existence only in the
year 2003, that the plaintiff’s title deeds also did not show the
plaint B schedule strip of land as a northern boundary and that
the 2nd defendant purchased the northern property in the year 1994
and thereafter put up the house therein shown as H3 in the plan.
4. There was an interim injunction in favour of the plaintiff
till the disposal of the suit which was dismissed on 31.7.08. After
the dismissal of the suit, according to the defendants they filled up
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the property and raised tapioca and plantain cultivation and also
planted coconut saplings in the plaint B Schedule strip of land.
Four days after the dismissal of the suit the plaintiff filed
I.A.No.1979 of 2008 for maintaining the status quo as per the
report of the Advocate Commissioner till the filing of the appeal.
The said application was opposed by the defendants contending
inter alia that after dismissal of the suit they had filled up the land
with 50 loads of soil and had effected cultivation and therefore it
was not possible to maintain status quo as on the date of the
Commissioner’s report. As per the order dated 4.8.08, the trial
court held that it was not possible to maintain the status quo as on
the date of filing of the Commissioner’s report and that what was
needed was only an interim arrangement so as to permit the
ingress and egress through the plaint B schedule property till the
filing of the appeal. The trial court also observed that
notwithstanding the filling of the property it had not become unfit
to be used as a way. Hence, the defendants were restrained from
causing any further obstruction on the way or altering the present
position of the B Schedule Property as stated in the petitions filed
by the defendants or from obstructing the plaintiff from using the
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Plaint B Schedule way to the plaint A schedule property in its
present condition. Thus notwithstanding the filling up of the
property by the defendants after the dismissal of the suit, the trial
court permitted the plaintiff to use the plaint B Schedule as a
pathway after taking note of the fact of filling up the property and
the act of effecting cultivation by the defendants after the dismissal
of the suit. Thereafter, the plaintiff filed an appeal before the Sub
Court, Payyannur as A.S.No.75 of 2008 against the decree passed
by the trial court. They also filed I.A.No.1203 of 2008 for an
interim mandatory injunction so as to restore the property to the
original condition as on the date of filing the Commission Report.
The status quo order passed by the trial court in I.A.No.1979 of
2008 after dismissal of the suit and the efforts which had taken
note of by the trial court while passing the said order were
concealed from the lower appellate court while filing I.A.No.1203
of 2008. The lower appellate court, as per the impugned order
dated 27.9.2008, has now allowed the said application holding that
the plaintiff’s case will have to be considered in the appeal and
pending the appeal the property has to be restored to the original
condition right up to the report of the Advocate Commissioner
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failing which irreparable injuries would be caused to the plaintiffs.
Accordingly, the defendants have been directed to restore the
plaint B schedule to its original position as on the date of Ext.C1
Commissioner’s Report within 7 days of the said order failing which
the plaintiff has been permitted get the order executed through
the court.
5.The learned counsel for the plaintiff /caveator made the
following submissions before me in support of the imugned order:-
Eventhough the suit has been dismissed by the trial court
there are findings in the judgment in favour of the plaintiff. The
suit for perpetual injunction was based on the right of easement.
But no issue was framed by the trial court. The user of the plaint B
Schedule pathway by the and plaintiff and his predecessors- in-
interest from the year 1981 has been appreciated by the trial court.
By filling up the B Schedule property and raising cultivation
thereon the defendants were altering the nature of the property to
the detriment of the plaintiff. By doing so, the defendants have
virtually obliterated the plaint B Schedule pathway to the extreme
prejudice of the plaintiff. The lower appellate court was only
directing the status quo to be maintained so that the defendants
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are not placed in an advantageous position.
6. I am not inclined to agree with the above submissions. It
is true that pending the suit there was an interim injunction in
favour of the plaintiff. But the trial court has categorically taken
note of the following facts:-
i) The plaint B schedule property belonging to the defendants
and situated to the north of the plaint A schedule property came
into existence only in the year 2003. The plaintiff acquired the
plaint A schedule property in the year 1985.
ii) The title deeds of the plaintiffs as well as the documents
by which the plaintiff had pledged the plaint A schedule property
would go to show that the defendants’ property and the property of
one Unnikrishnan alone were shown as the northern boundary. If
the plaint B Schedule way was in existence and was used as
alleged by the plaintiff then that would have certainly figured as
one of the northern boundary.
(iii) The plaintiff has an alternative way in the form of a
pathway lying towards the southern boundary of the plaint A
Schedule property.
(iv) The plaint contains a specific allegation that the plaint B
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Schedule property does not belong to the defendants if so the
claim of easement by way of prescription is inconsistent to the said
allegation.
v) It was after dismissal of the suit that the defendants had
filled up the plaint B Schedule and raised cultivation thereon.
7. It was never alleged by the plaintiff that the said act of the
defendants was in violation of the interim injunction pending suit.
If so it was taking note of the said change in the situation and the
trial court passed the status quo restraining the defendants from
making any further change in the property and allowing the
plaintiff to use the plaint B Schedule as a pathway till the filing of
the appeal. The circumstances which were noticed by the trial
court were concealed from the lower appellate court while filing
I.A.No.1203 of 2008 seeking the interim mandatory injunction. The
lower appellate court was not justified in ignoring the fact that the
filling of the land and raising of the cultivation was not at a time
when the order of injunction against the defendants was in force.
If so, there was no need for granting the interim mandatory
injunction allegedly for the restoration of the status quo to the
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anterior date of Ext.C1 report. The lower appellate court has failed
to notice the detailed order passed by the trial court in I.A.No.1979
of 2008 as per which the plaintiff’s requirements were adequately
taken care of and there was no irreparable injury or balance of
convenience so as to direct the defendants to restore the property
to original condition and that too to a date even before the date of
disposal of the suit.
Accordingly, the impugned order is set aside and the status
quo order passed by the trial court in I.A.No.1979 of 2008 shall
continue to be in operation till the lower appellate court disposes of
the appeal which shall be disposed of untrammelled by the
observations in this order.
Dated this the 7th day of October, 2008.
V. RAMKUMAR, JUDGE
sj