IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27302 of 2010(O)
1. VELAYUDHAKURUP,S/O.CHEMBIL
... Petitioner
Vs
1. MURALEEDHARAN,S/O.AREEKKARA ILLATH
... Respondent
2. SUBRAMANIAN,S/O.KANDAMPULLI VELAY,
3. SUMATHI,W/O.SUBRAMANIAN,DO. DO.
4. MUHAMMED,S/O.ERANHIPPURATH
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :SRI.JAMSHEED HAFIZ
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/10/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.27302 of 2010
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Dated this the 12th day of October, 2010.
JUDGMENT
Plaintiff No.1 in O.S.No.137 of 2006 of the court of learned Munsiff-
Magistrate, Ponnani and respondent in A.S.No.81 of 2007 of the court of learned
Sub Judge, Tirur is the petitioner before me, aggrieved by Ext.P6, order as per
which learned Sub Judge granted stay of execution of the decree for mandatory
injunction.
2 Dispute concerns plaint C schedule way lying on the south of plaint
A and B schedules belonging to petitioner/plaintiff No.1 and plaintiff No.2. There
was some proceedings before the Sub Divisional Magistrate initiated by
petitioner and others which did not succeed and thereon petitioner and plaintiff
No.2 filed the suit before learned Munsiff-Magistrate for a declaration that plaint
C schedule is not a private way and for a decree for mandatory injunction to
direct the respondents to remove the obstruction allegedly caused by them
which prevented petitioner and plaintiff No.2 from gaining access to their
properties from the disputed plaint C schedule. The suit was resisted by the
respondents on various grounds. Learned Munsiff-Magistrate did not grant the
declaration prayed for but, on the strength of the report of Advocate
Commissioner and other evidence regarding existence of plaint C schedule
along south of plaint A and B schedule properties and finding in favour of
alleged obstruction caused by the respondents granted a decree for mandatory
injunction in favour of petitioner and plaintiff No.2. Challenging that judgment
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and decree respondents preferred A.S.No.81 of 2007 before learned Sub
Judge and filed I.A.No.2145 of 2007 for stay of operation of the decree. Learned
Sub Judge after hearing both sides granted a stay of execution of the decree for
mandatory injunction. That order is under challenge. Learned counsel for
petitioner contends that except the plaint C schedule way petitioner/plaintiff No.1
has no other means of access to the plaint A schedule belonging to him and
where he is residing. Learned counsel has produced photographs of the way
and the obstruction allegedly caused by the respondents. Learned counsel for
respondents contended that plaint A and B schedules are lying contiguous and
that the property where plaintiff No.2 is residing abuts public road on the east so
that petitioner and plaintiff No.2 can have direct access from the public road. It is
also pointed out that at no point of time during pendency of the suit in the trial
court petitioner or plaintiff No.2 were using plaint C schedule. In such a situation
granting permission to use plaint C schedule at this stage would amount to
allowing petitioner to execute the decree in his favour and which is under
challenge in the appeal.
3. There is dispute as to the nature of right petitioner and plaintiff No.2
claims over plaint C schedule. Learned Munsiff-Magistrate also did not grant the
declaration prayed for whatever be the reason thereof and the decree is confined
to the mandatory injunction prayed for. It is not disputed that at no point of time
during pendency of the suit petitioner was using plaint C schedule. In such a
situation I do not find reason to interfere with the discretionary order of stay
passed by the learned Sub Judge as to the execution of decree for mandatory
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injunction and create a new situation. But, the grievance of petitioner has to be
redressed. That could be done by directing learned Sub Judge to expedite
disposal of the appeal itself. I am told that steps in the appeal are over and that
it is ripe for hearing. Learned Sub Judge is directed to dispose of the appeal
giving it top priority as early as possible, at any rate within a month from the date
of receipt of a copy of this judgment.
Writ Petition is disposed of with the above direction.
THOMAS P.JOSEPH,
Judge.
cks