IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 32488 of 2009(O) -------------------------- I.A.NO.5763/2009 IN OS.329/2009 of PRL.M.C.,ERNAKULAM .................... PETITIONER(S): ------------------------- 1. T.K. RENJITH, S/O. DAMU, AGED 37 YEARS, HOUSE NO. 37/3075 -A, PALLIPARAMBU LANE, PONOTH ROAD, KALOOR, ERNAKULAM , COCHIN-682 017. 2. SMT. CHANCHAL RENJITH, W/O T.K.RENJITH, AGED 31 YEARS, HOUSE NO. 37/3075 -A, PALLIPARAMBU LANE, PONOTH ROAD, KALOOR, ERNAKULAM, COCHIN -17. BY ADV. MR.PEEYUS A.KOTTAM RESPONDENT(S): --------------------------- 1. M.K. BALU, S/O. K.V. PADMANABHAN, AGED 42 YEARS, PRASAD MANIDR, THIRUMITTACODE DESOM, PALAKKAD, NOW RESIDING AT HOUSE NO. 42/93, PRABHUTHAM, MANDIRAM ROAD, AYYAPPAN KAVU, ERNAKULAM,COCHIN-682 018. 2. P.ASHA, W/O.M.K. BALU, AGED 36 YEARS, PRASAD MANDIR, THIRUMITTACODE DESOM, PALAKKAD NOW RESIDING AT PRABHUTHAM, MANDIRAM ROAD, ERNAKULAM,COCHIN-18. 3. JOHN JOSEPH, S/O. M.A. JOSEPH, AGED 54 YEARS, BUSINESS, MALIYEKKAL HOUSE, METHALA VILLAGE, MUKUNDAPURAM TALUK, KOTTAPPURAM DESOM, TRICHUR DIST. NOW RESIDING AT 34/2074 -A, SHREYAS,YESORAM LANE, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK, 4. K.K. SUHARA, AGED 49 YEARS, W/O. THEKKEVELIYIL MUHAMMED, HOUSE NO. 68/32, THEKKEVELIYIL HOUSE, (ZIRAJ BUILDERS), OPPOSITE TO RATION SHOP, MAMANGALAM, POTTAKUZHY ROAD, KALOOR, COCHIN -682 017. R1 & R2 BY ADVS. MR.T.B.THANKAPPAN, MR.T.T.HARIKUMAR. R3 BY ADV. MR. V.P.RAMESAN R4 BY ADV. SMT.P.K.PAMALA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32488/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PLAINT DTD. 04/03/2009 FILED BY PLAINTIFFS IN O.S.NO.329/2009 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. P2: COPY OF AGREEMENT DTD. 04/03/2003 EXECUTED BY 3RD RESPONDENT IN FAVOUR OF 4TH RESPONDENT. P3: COPY OF WRITTEN STATEMENT DTD. 26/06/2009 FILED BY 3RD RESPONDENT IN O.S.NO.329/2009. P4: COPY OF WRITTEN STATEMENT DTD. 05/08/2009 FILED BY 3RD RESPONDENT INO.S.NO.329/2009. P5: COPY OF I.A.NO.5763/2009 IN O.S.N.329/2009 DTD. 12/08/2009 FILED BY PLAINTIFF BEFORE MUNSIFF COURT, ERNAKULAM. P6: COPY OF COUNTER AFFIDAVIT DTD. 24/09/2009 FILED BY 3RD RESPONDENT IN I.A.NO.5763/2009 IN OS.NO.329/2009. P7: COPY OF ORDER DTD. 16/10/2009 OF MUNSIFF COURT, ERNAKULAM IN I.A.NO.5763/2009 IN O.S.NO.329/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.32488 OF 2009 -------------------------------- Dated this the 14th day of January 2010 ---------------------------------------------------------- JUDGMENT Writ petition is filed by the plaintiffs in O.S No.329 of 2009 on the file of Munsiff Court, Ernakulam. Suit is one for declaration of a right of easement over a pathway which is described as 'B' schedule, and for injunction. Respondents are the defendants. The main contesting defendants in the suit are the 1st and 2nd defendants. Plaintiffs claimed easement by grant over 'B' schedule pathway on the basis of an agreement purported to have been executed by the 3rd respondent in favour of the 4th respondent from whom they have purchased plaint 'A' schedule property. The right conferred on the 3rd defendant under the document by virtue of the sale deed executed by the 3rd defendant in their favour has passed over to them is the basis of the suit claim. The 3rd defendant has filed a written statement contending that other than the sale deed executed in favour of the 4th defendant he had not executed any document in favour of W.P.(C).No.32488 OF 2009 Page numbers the 4th defendant. Plaintiffs moved an application under Order 11 Rule 11 of the Code of Civil Procedure seeking for answer to the interrogatory from the 3rd defendant whether the document produced by them which is purported to have been issued by that defendant in favour of the 4th defendant bear the signature of the 3rd defendant. 3rd defendant filed an objection to that petition. The learned Munsiff after hearing both sides dismissed that application vide Ext.P7 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned counsel for the petitioners/plaintiffs submitted that in the counter affidavit, 3rd defendant has not specifically raised any objection that the document produced by the plaintiffs has not been signed by them. Learned counsel for the 3rd defendant submitted that in the written statement that defendant has specifically contended that other than the sale deed executed in favour of the 4th defendant, no other W.P.(C).No.32488 OF 2009 Page numbers document was executed by him. Learned counsel for the petitioners submits that they have moved a petition for sending over the documents with the admitted signature and writings of the 3rd defendant for comparison by a forensic expert and opinion thereof and that petition is awaiting consideration by the court. As there is a denial of execution of the document, I find, the interrogatory moved by the petitioners/plaintiffs was rightly and correctly negatived by the court below. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv