IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22170 of 2010(O)
1. JAYANTHAN S/O.MADHAVAN,
... Petitioner
2. VIMALA W/O.JAYANTHAN
Vs
1. RAMACHANDRAN,S/O.PARAMESWARAN,
... Respondent
2. RAJESH,
For Petitioner :SRI.M.V.THAMBAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/07/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.Nos.22138 and 22170 of 2010
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Dated this 19th day of July, 2010
JUDGMENT
These writ petitions arise from common judgment of
learned Additional District Judge-II, Mavelikkara in
C.M.A.Nos.50, 51 and 52 of 2008, respectively which arose from
the order of prohibitory and mandatory injunction passed by the
learned Munsiff, Haripad in O.S.Nos.207 and 221 of 2008,
respectively. Parties are referred to as petitioners and
respondent for the sake of convenience.
2. Respondent filed O.S.No.207 of 2008 for declaration
of right of easement by way of necessity and for prohibitory
injunction. Petitioners countered that suit by filing O.S.No.221 of
2008. Property of respondent/defendant (in O.S.No.221 of 2008)
is situated on the south of Chempu Thodu. On the north of that
Thodu there is a small strip of land. On its further north is the
public road. Respondent claimed that the only means of access to
his property on the south of the Chempu Thodu is through the
wooden bridge across the said Thodu which has its terminal
points on the south in his own property and on the north in the
small strip of land lying between the Chempu Thodu and public
W.P.C.Nos.22138 and 22170 of 2010
: 2 :
road. He apprehended that petitioners might remove the bridge
which would prevent him from gaining access to his property on
the further south. Hence respondent filed O.S.No.207 of 2008
against petitioners and moved I.A.No.1182 of 2008 for an order
of temporary injunction. Learned Munsiff granted an interim
order of injunction on that application. Petitioners claimed that
the small strip of land in between the Chempu Thodu and public
road formed part of their property and that respondent is
attempting to put up new bridge over the Thodu and to make use
of the small strip of land belonging to petitioners. They filed
O.S.No.221 of 2008 against respondent for decree for prohibitory
injunction and moved I.A.No.1312 of 2008 for an order of
temporary injunction. In the meantime Advocate Commissioner
inspected the properties and submitted report. Later, respondent
filed I.A.No.1344 of 2008 in O.S.No.207 of 2008 for an order of
mandatory injunction alleging that under cover of institution of
O.S.No.221 of 2008 petitioners removed the said bridge making
it impossible for him to gain access to his property on the south
of Chempu Thodu. Learned Munsiff considered the applications
and dismissed I.A.No.1312 of 2008 while I.A.No.1182 of 2008
and 1344 of 2008 were allowed. Aggrieved, petitioners filed
C.M.A.Nos.51 of 2008 challenging dismissal of I.A.No.1312 of
W.P.C.Nos.22138 and 22170 of 2010
: 3 :
2008 and C.M.A.Nos.50 of 2008 and 52 of 2008 against allowing
I.A.Nos.1182 of 2008 and 1344 of 2008 (in O.S.No.207 of 2008).
Learned Additional District Judge-II, Mavelikkara found no
reason to interfere with the common order passed by learned
Munsiff and dismissed the C.M appeals. That common judgment
is under challenge in these writ petitions. W.P.C.No.22138 of
2010 arises from judgment in C.M.A.No.51 of 2008 while
W.P.C.No.22170 of 2010 arises from the judgment in
C.M.A.Nos.50 and 52 of 2008. Learned counsel has referred me
to the contentions raised by the parties and report of Advocate
Commissioner to show that even before institution of O.S.No.221
of 2008, northern terminal of the wooden bridge was not
touching the small strip of land over which petitioners claimed
title and possession. It is also contended by learned counsel that
in the way O.S.No.207 of 2008 is framed, respondents are not
entitled to get a decree as prayed for and hence I.A.Nos.1182 of
2008 and 1344 of 2008 ought to have been dismissed.
3. Now what is required to be considered is whether
interference is required with the finding of fact entered by the
courts below in exercise of the this courts’ supervisory
jurisdiction under Article 227 of the Constitution. Unless the
finding is illegal or perverse in that it is not supported by any
W.P.C.Nos.22138 and 22170 of 2010
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material interference in exercise of that jurisdiction is not called
for particularly as it is by way of interim measure that learned
Munsiff has disposed of the applications. It is seen from the
report of Advocate Commissioner in O.S.No.207 of 2008 (Ext.P8
in W.P.C.No.22170 of 2010) that at the time Advocate
Commissioner inspected the property there was a wooden bridge
which according to the Commissioner was the only means of
access to the property of respondent. It is also seen that in the
subsequent visit position of the wooden bridge was seen altered.
It is considering these aspects that learned Munsiff allowed
I.A.Nos.1182 of 2008 and 1344 of 2008. Learned Munsiff has
referred to the reports of Advocate Commissioner in both the
cases and noticed the change of situation of the wooden bridge
after first inspection by the Commissioner. After considering
these aspects and the report in O.S.No.207 of 2008 that only
access for respondent is through the disputed wooden bridge
learned Munsiff permitted respondent to restore the bridge to its
original position making it clear that if it is ultimately found after
taking evidence that respondent is not entitled to put up the
bridge in that position he shall remove the bridge. Learned
Munsiff has also observed that question whether the small strip
of land between the Thodu and road on the north belonged to the
W.P.C.Nos.22138 and 22170 of 2010
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petitioner is a matter which could be decided after recording
evidence. I have gone through the records placed before me and
heard learned counsel for petitioners. I do not find reason to
interfere with the common order passed by the learned Munsiff
as confirmed by the learned Additional District Judge.
These writ petitions fail and are accordingly dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-