IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 WP(C).No. 24484 of 2008(M) -------------------------- OS.88/2008 of MUNSIFF COURT, PUNALUR .................... PETITIONER: ------------ 1. KARTHIYAYANI AMMA, D/O.KOCHUKARUMBI NJEDRINJAMPALLIL VEEDU, KAURA MURI THALAVOOR VILLAGE, PUNALLUR, KOLLAM. 2. SUKUMARAN. S/O.KOCHUKARUMBI DO.DO. 3. SARASWATHY, D/O.KOCHUKARUMBI, DO.DO. BY ADV. SRI.B.MOHANLAL SRI.A.SANIL KUMAR RESPONDENTS: ------------- OMANA, D/O. CHELLAMMA, RAMANA VILASOM VEEDU, KURA MURI, THALAVOOR VILLAGE, PUNALUR, KOLLAM DISTRICT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.24484/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: THE TRUE COPY OF THE PLAINT IN O.S.NO.88/2008 OF MUNSIFF COURT, PUNALUR. EXT.P2: THE TRUE COPY OF THE ORDER IN I.A.NO.629/2008 OF THE MUNSIFF COURT, PUNALUR. EXT.P3: TRUE COPY OF THE COMMISSION REPORT DATED 19.03.08. EXT.P4: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS EXT.P5: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS. EXT.P6: TRUE COPY OF I.A.NO.773/2008 FILED BY THE RESPONDENT. EXT.P7: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS EXT.P8: TRUE COPY OF I.A.NO.1267/2008 FILED BY THE PETITIONERS EXT.P9: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT. EXT.P10: TRUE COPY OF THE SECOND COMMISSION APPLICATION FILED BY THE RESPONDENT EXT.P11: TRUE COPY OF I.A.NO.1300/2008 FILED BY THE PETITIONERS TO SETASIDE EXT.P3 COMMISSION REPORT. EXT.P12: TRUE COPY OF THE MEMO SUBMITTED BY THE PETITIONERS EXT.P13: TRUE COPY OF THE SECOND COMMISSION REPORT. EXT.P14: TRUE COPY OF THE COMMON ORDER IN I.A.NO.773/2008 AND I.A.NO.1267/08. EXT.P15: TRUE COPY OF I.A.NO.1438/08 FILED BY THE RESPONDENT. EXT.P16: TRUE COPY OF THE ORDER IN I.A.NO.1438/2008 FOR IMPLEMENTING EXT.P14 ORDER. V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (C )NO. 24484 of 2008 - M * * * * * * * * * * * * * * * * * * Dated: 15-09-2008 JUDGMENT Petitioners, three in number, are the defendants in O.S. No. 88 of 2008 on the file of the Munsiff's Court, Punalur, filed by the respondent herein. The said suit is for a declaration of the right of easement of necessity over the plaint B schedule pathway and for a mandatory injunction to remove the obstruction caused to the same. Along with the suit the respondent/plaintiff filed I.A. No. 629 of 2008 for a temporary injunction restraining the petitioners herein from causing any obstruction to the plaint B schedule pathway. The said application was vehemently opposed by the petitioners contending inter alia that even assuming that the plaintiff has an easement of necessity, the same stands extinguished by the availability of an alternate pathway which is made mention of in Ext.P3 report of the Commissioner. 2. After the grant of exparte injunction the plaintiff filed I.A. 773 of 2008 alleging that the defendants had caused an obstruction to the plaint B schedule way and for removal of the obstruction caused by means of a temporary mandatory injunction. The petitioners/defendants also filed I.A. 1267 of 2008 for vacating the interim injunction W.P. (C )NO. 24484 of 2008 - M -:2:- granted in I.A. 629 of 2008. The court below as per common order dated 24-7-2008 dismissed I.A. 1267/08 but allowed I.A. 773 of 2008. It is the said common order which is assailed in this Writ Petition filed under Articles 226 and 227 of the Constitution of India. 2. The case of the plaintiff is that she has been using the plaint B schedule passage passing through the property of the defendants to reach the public road and that she has no other pathway and further that the defendants have been causing obstruction to the user of the plaint B schedule passage by the plaintiff. The said case of the plaintiff is opposed by the defendants contending inter alia that the plaintiff has no right of easement by necessary and that even assuming that she has such a right the same is extinguished on account of the availability of an alternative pathway. The learned counsel for the petitioner buttressed the above defence by placing reliance on Ext. P13 report of the Advocate Commissioner. The effect of the impugned order is only to allow the plaintiff to use the plaint B schedule passage pending suit for having ingress and egrees to her property from the main road. The question as to whether the plaintiff has made out a case of easement by necessity and the further question as to whether the easement by necessity stands extinguished on account of the existence of an alternate pathway are all matters to be decided after the trial. Hence, without going W.P. (C )NO. 24484 of 2008 - M -:3:- into the merits of the case and without pronouncing upon the rival contentions of the parties, this Writ Petition is dismissed. I make it clear that the findings and observations in the impugned order shall not influence the court below while disposing of the suit on the merits and the interim order of injunction shall only be an arrangement in favour of the plaintiff for the user of the passage till the disposal of the suit and it will not confer any special right on the plaintiff who will have to establish her rights during the trial of the case. V. RAMKUMAR, (JUDGE) ani.