IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 289 of 2010(O)
1. M.A.JEEVA,AGED 43 YEARS,S/O.ASSARIA,
... Petitioner
Vs
1. MATHEW SCARIA @ RAJU,
... Respondent
For Petitioner :SRI.K.S.HARIHARAPUTHRAN
For Respondent :SRI.N.SUBRAMANIAM
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/10/2010
O R D E R
THOMAS P.JOSEPH, J.
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O.P(C) No.289 of 2010
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Dated this the 19th day of October, 2010
J U D G M E N T
This petition is in challenge of Ext.P10, judgment dated
20.08.2010 in C.M.A. No.7 of 2010 of the court of learned Sub
Judge, Kattappana reversing the order passed by learned Munsiff,
Kattappana on I.A. No.10 of 2010 in O.S. No.213 of 2009. That is a
suit filed by petitioner for a decree for prohibitory injunction
alleging that he is enjoying a right of access to plaint A schedule
belonging to him through plaint B schedule having a width of 12
feet. Petitioner claimed right of easement by way of prescription
over plaint B schedule. He also filed an application for temporary
injunction and the learned Munsiff granted an interim order. The
Advocate Commissioner inspected property and submitted report
and sketch which according to the petitioner indicated existence
of a way as stated in plaint B schedule. It is the further case of the
petitioner that later in violation of the order of injunction
respondent-defendant caused obstruction to plaint B schedule
pathway and reduced its width to three feet. Thereon petitioner
O.P(C) No.289 of 2010
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filed I.A. No.10 of 2010 for an order of mandatory injunction. That
application was allowed. Respondent challenged that order in
C.M.A.No.7 of 2010. In the meantime one Joshwa Mathew, grand
son of respondent filed O.S. No.3 of 2010 in the court of learned
Munsiff, Kattappana for a decree for prohibitory injunction
against petitioner trespassing into the property claimed to be his.
He denied existence of a way as claimed by petitioner. Joshwa
Mathew was unsuccessful in getting an order of interim injunction
obviously in the light of the report and sketch submitted by the
Advocate Commissioner immediately after the institution of O.S.
No.213 of 2009. Refusal to grant interim order in favour of Joshwa
Mathew was challenged before the learned Sub Judge in C.M.A.
No.4 of 2010. Learned Sub Judge disposed of C.M.A. No.7 of 2010
while C.M.A. No.4 of 2010 was pending in that court. Against
disposal of C.M.A. No.7 of 2010 petitioner filed W.P(C) No.17551
of 2010 in this Court. This Court set aside the judgment of learned
Sub Judge in C.M.A. No.7 of 2010 (Ext.P10) and the appeal was
remitted to the learned Sub Judge to be disposed of along with
C.M.A. No.4 of 2010. Thereafter learned Sub Judge disposed of
C.M.A. Nos.4 and 7 of 2010. Refusal of learned Munsiff to grant
order of temporary injunction in favour of Joshwa Mathew was
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confirmed and C.M.A. No.4 of 2010 was dismissed. C.M.A. No.7
of 2010 was allowed and the order of mandatory injunction
granted on I.A. No.10 of 2010 (in O.S. No.213 of 2009) was
reversed for the reason that Joshwa Mathew who claimed to be
the owner in possession of the disputed B schedule was not made
a party in O.S. No.213 of 2009. Exhibit P10, judgment in C.M.A.
No.7 of 2010 is under challenge in this petition.
2. I have heard counsel on both sides. Having heard
counsel on both sides it appears to me that an interim
arrangement has to be made until disposal of the suit. Learned
counsel for respondent-defendant has made an undertaking that
notwithstanding the dispute raised by respondent regarding
ownership and possession of the property, respondent will provide
a way having width of three feet for access to the petitioner to the
plaint A schedule and that the obstruction if any in the said
portion will be removed by the respondent within a week from this
day. Learned counsel for petitioner is also agreeable for the said
suggestion for the time being. Considering the facts
circumstances of the case I am of the view that undertaking can
be accepted leaving open all contentious issues to be decided by
the trial court after recording evidence. Learned counsel for
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petitioner states that in the meantime he will take steps to
implead Joshwa Mathew as additional defendant in O.S. No.213 of
2009.
Resultantly, Original Petition petition is disposed of in the
following lines:
(i) Undertaking made by learned counsel for
respondent that respondent will provide a way having
width of three feet on the southern side of the
property which respondent claimed to be belonging
to Joshwa Mathew and extending east-west along the
entire southern boundary of the said property within
a week from this day for access for petitioner and his
men to the plaint A schedule is accepted and
recorded. Respondent shall do so within the said
period.
(ii) Undertaking made by learned counsel for
respondent that if there is any obstruction in the said
way (having a width of three feet), such obstruction
will be removed within the said period of one week
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from this day is accepted and recorded. Respondent
shall do so within the said period.
(iii) It is directed that the above interim
arrangement will continue until disposal of the suit.
(iv) Contentious issues shall be decided by
the trial court untrammelled by the observation
contained in the order on I.A. No.10 of 2010 or the
judgment in C.M.A. No.7 of 2010.
THOMAS P. JOSEPH, JUDGE.
vsv