IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 265 of 2010(O)
1. MARIAMMA @ SUSI, W/O.MANI,
... Petitioner
2. MANI, W/O.SASI,
Vs
1. JUSTIN JOHN, TC.34/1564(6),
... Respondent
For Petitioner :SMT.M.HEMALATHA
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :11/10/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.265 of 2010
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Dated this the 11th day of October, 2010.
JUDGMENT
Defendants in O.S.No.1955 of 2009 of the court of learned Additional
Munsiff-III, Thiruvananthapuram are the petitioners before me challenging the
order on I.A.No.10864 of 2009 as modified by the learned Additional District
Judge-I, Thiruvananthapuram in C.M.A.No.40 of 2010. Respondent/plaintiff
claimed that plaint A schedule belonged to him as per Ext.A1 (marked in the trial
court) assignment deed No.3487 of 2009 and by that assignment deed he has
right to enjoy plaint B schedule road leading from the Airport-Beach road to the
plaint A schedule and having a width of three metres. It is also the case of
respondent that on the south of plaint B schedule is the property of petitioners
and that the disputed way is bounded by compound wall on the north and south.
Petitioners allegedly made certain attempts to demolish the compound wall and
annex a portion of plaint B schedule to their property. They allegedly obstructed
use and enjoyment of plaint B schedule by respondent/plaintiff. Thereon
respondent filed the suit for a decree for prohibitory injunction. Vide
I.A.No.10804 of 2009 there was a request for temporary injunction. Learned
Additional Munsiff observed in the order that petitioners/defendants had not
filed any written objection to the application. But according to learned counsel
for petitioners written objection was provided a copy of which is produced in this
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Court as Ext.P4. Whatever that be, learned Additional Munsiff vide Ext.P5, order
granted temporary injunction holding that respondent/plaintiff has convincingly
established a prima facie case in his favour. Petitioners took up the matter in
appeal before learned Additional District Judge-I, Thiruvananthapuram.
Learned Additional District Judge has observed that it is not pleaded anywhere
in the plaint or in the application how the respondent/plaintiff got ‘possession’
over plaint B schedule or over the compound wall which is situated in the
property of petitioners/defendants. Hence learned Additional District Judge
declined relief against alleged demolition of compound wall which is situated in
the property of petitioners. Learned Additional District Judge modified Ext.P5,
order restraining petitioners not to cause any obstruction to the user of plaint B
schedule way by the respondent for access to plaint A schedule. Learned
counsel contends that there is no such way as claimed by the respondent and
that it is a vehicle parking area of petitioners and that has been described as
plaint B schedule way and in respect of which an order of injunction was passed.
In consequence of that petitioners are not able to park their vehicles. Learned
counsel has referred to the relevant documents and also the judgment/order
under challenge. Ext.A1 marked in the trial court (copy of sale deed No.3487 of
2009 dated 09.10.2009) as per which respondent/plaintiff got title and
possession over plaint A schedule is being relied upon by the respondent to
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claim access through plaint B schedule. The width of the way is described as
three metres. Advocate Commissioner has reported about the existence of the
disputed way having a width of about three metres and originating from
Sankumugham-Valiyathura road and leading towards west through which access
to plaint A schedule is possible. Though in the plaint length of the disputed way
is stated as 50 metres, Advocate Commissioner found it as 55 metres.
Advocate Commissioner reported oldness of the compound wall on either side
as about ten years. Exts.A2 and A3 are prior documents of respondent.
Learned Additional Munsiff observed from Exts.A1 to A3 that the predecessors-
in-interest of respondent/plaintiff had right over the disputed way (over which
easement by grant is allegedly granted in favour of respondent). Materials
prima facie disclosed existence of the disputed way and the right claimed by
respondent over it. In the circumstances I do not find reason to interfere with
the order of learned Additional Munsiff as confirmed by the learned Additional
District Judge. If the petitioners have a grievance that the order of injunction
causes inconvenience to them it is open to the petitioner to request learned
Munsiff for expeditious disposal of the suit if the pre-trial steps are over. Having
heard counsel and gone through the records I am not satisfied that the order of
learned Additional Munsiff as confirmed by the learned Additional District Judge
calls for interference under Article 227 of the Constitution. I make it clear that it
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will be open to the petitioners to raise all their contentions before the learned
Additional Munsiff who shall decide the suit untrammelled by the findings and
observations contained in the impugned order/judgment or in the judgment of
this Court.
Original Petition is dismissed with the above observation.
THOMAS P.JOSEPH,
Judge.
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