High Court Kerala High Court

K.M.Sivadasan vs T.P.Gengadharan on 7 October, 2008

Kerala High Court
K.M.Sivadasan vs T.P.Gengadharan on 7 October, 2008
       

  

  

 
 
  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