IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 OP(C).No. 2510 of 2011(O) ------------------------ AGAINST THE JUDGMENT DATED 12/7/2011 IN CMA.10/2011 & CMA.11/2011 OF SUB COURT, TIRUR ................ PETITIONER : -------------------- 1. NEDUVANCHERRY HAMSA, S/O.KAMMAD, KALPAKANCHERRY AMSOM, THOZHANNUR DESOM, P.O.KARUKA, TIRUR TALUK. 2. NEDUVANCHERRY SIDHEEQ, S/O.HAMSA, KALPAKANCHERRY AMSOM, THOZHANNUR DESOM, P.O.KARUKA, TIRUR TALUK. BY ADVS. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA RESPONDENT : ----------------------- NEDUVANCHERRY KUNHAYISA @ AYISA, W/O.VELLATHOOR SHAMSUDHEEN, KALPAKANCHERRY AMSOM, THOZHANNUR DESOM, P.O.KARUKA, TIRUR TALUK - 676 551. BY ADVS. SRI.K.RAMACHANDRAN SMT.S.JAYASREE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 2510 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT IN O.S. NO. 6/2011 OF MUNSIFF COURT, TIRUR DATED 03.01.2011. EXT.P2 : COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S. NO. 6/2011 OF MUNSIFF COURT, TIRUR DATED 25.2.2011. EXT.P3 : COPY OF I.A. 14/2011 IN O.S. NO. 6/2011 ON THE FILE OF COURT OF THE MUNSIFF OF TIRUR DATED 03.01.2011. EXT.P4 : COPY OF THE COUNTER FILED BY THE DEFENDANTS IN I.A. 14/2011 IN O.S. NO. 6/2011 ON THE FILE OF COURT OF THE MUNSIFF OF TIRUR DATED 28.1.2011. EXT.P5 : COPY OF I.A. 15/2011 IN O.S. NO. 6/2011 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 03.1.2011. EXT.P6 : COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANTS IN I.A. 15/2011 IN O.S. NO. 6/2011 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 29.1.2011. EXT.P7 : COPY OF THE REPORT SUBMITTED BY THE COMMISSIONER IN O.S. 6/2011, MUNSIFF COURT, TIRUR DATED 18.01.2011. EXT.P8 : COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER IN O.S. 6/2011, MUNSIFF COURT, TIRUR DATED 18.1.2011. EXT.P9 : COPY OF DETAILED OBJECTIONS ON THE PLAN AND REPORT OF THE COMMISSIONER ON 28.1.2011. EXT.P10 : COPY OF COMMON ORDER DATED 23.03.2011 IN I.A. 14/2011 AND I.A. 15/2011 IN O.S NO. 6/2011, MUNSIFF COURT, TIRUR. EXT.P11 : COPY OF JUDGMENT OF SUB COURT, TIRUR IN C.M.A. NO. 10/2011 AND C.M.A. NO. 11/2011 DATED 12.07.2011. RESPONDENT'S EXHIBITS: EXT.RI : COPY OF AFFIDAVIT AND PETITION IN I.A. 1582/2011 IN OS 6/2011. //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2510 of 2011 --------------------------------------- Dated this 16th day of August, 2011 JUDGMENT Defendants in O.S.No.6 of 2011 of the Court of learned Munsiff, Tirur are the petitioners before me challenging the concurrent finding entered by the courts below as to the entitlement of respondent/plaintiff for an order of prohibitory and mandatory injunction on I.A.Nos.14 and 15 of 2011, respectively as confirmed by the learned Sub Judge, Tirur in C.M.A.Nos.10 and 11 of 2011. Respondent filed the suit on 03.01.2011 seeking a decree for prohibitory injunction to restrain petitioners interfering with her user of the disputed pathway. According to the respondent, she have a right of easement by way of prescription over the disputed pathway originating from the suit property and then (allegedly) passing through the property of petitioners and reaching the tar road on the extreme north. Respondent alleged that even before institution of the suit, there was attempt to block the said way regarding which respondent filed complaint before the various authorities on 23.11.2010 and while so, on the night of 28.12.2010 the disputed way was blocked in the property of petitioners. Hence the suit. O.P(C).No.2510 of 2011 -: 2 :- Respondent filed I.A.Nos.14 and 15 of 2011 for temporary and mandatory injunction. Petitioners resisted the applications contending that there is no such way as claimed by the respondent over which she has any right of easement by prescription. They contended that about three years back they had granted permission to the respondent (who is a close relative) to take vehicle through their property in connection with a function that took place in the house of the respondent. They further contended that later they have withdrawn that permission. Learned Munsiff after consideration of the materials on record including the report and sketch produced by the Advocate Commissioner came to the conclusion, prima facie, that the disputed road was in existence through the property of petitioners, that it is motorable way, that the commissioner had even found a Maruti car in the courtyard of respondent and in the circumstance it is necessary to grant mandatory injunction as prayed for. Accordingly the applications were allowed. Learned Sub Judge has confirmed the finding of learned Munsiff and C.M.A.Nos.10 and 11 of 2011. 2. It is contended by learned Senior Advocate appearing for petitioners that the courts below failed to note that the relief of mandatory injunction granted by the trial court by way of O.P(C).No.2510 of 2011 -: 3 :- interim relief could not have been granted by way of final relief in that in spite of the plaint alleging that the disputed way was blocked as early as on 28.12.2010 and the suit was filed on 03.11.2011, the only relief prayed for in the suit is for prohibitory injunction and there is no prayer for mandatory injunction. In the circumstance, learned Munsiff was not correct in ordering mandatory injunction which it could not have granted by way of final relief (in the absence of a prayer for decree for mandatory injunction). It is pointed out by learned Senior Advocate that these aspects are not considered either by the trial court or by the appellate court. It is also pointed out by learned counsel that materials on record are not sufficient to show even prima facie user of the disputed way for the statutory period to confer right under Sec.15 of the Easements Act. Learned Senior Advocate alternatively pointed out that on the south and east of the suit property, there are public lanes which lead to the tarred road on the northern side. It is suggested by learned Senior Advocate that if necessary, petitioners are prepared as an alternative arrangement to widen that portion of the lane adjoining their property so that, respondent could take vehicles from her property, through the said lane (as may be widened by petitioners) to the public road on the north. O.P(C).No.2510 of 2011 -: 4 :- 3. Learned counsel for respondent contends that jurisdiction of this Court to interfere under Article 227 of the Constitution is very limited when the courts below have entered concurrent findings based on sufficient materials on record and it could not be said that the findings are perverse, arbitrary or capricious. Learned counsel has taken me through the report of the Advocate Commissioner which referred to the existence of that part of the disputed way through the property of respondent and up to the northern boundary of her property and further that the disputed portion of the way through the property of petitioners was ploughed and tapioca planted. It is pointed out by learned counsel that Commissioner uprooted the tapioca plant and find that it had not caught roots meaning thereby that tapioca was planted in that portion of the disputed way only very recently. It is pointed out that in the rest of the portion of the property of petitioners, no such cultivation could be found indicating thereby that the tapioca was planted only in the disputed portion of the pathway passing through the property of petitioners which indicated that immediately before the institution of the suit the disputed way was interfered with by the petitioners. It is also pointed out that even as per the contentions of petitioners the disputed way was in existence atleast for a O.P(C).No.2510 of 2011 -: 5 :- period of three years beginning from 2007 onwards. In that situation, whether it was by way of permission as contended by petitioners or it was as of right that the respondent was using the way and if so, for the statutory period are matters for the trial court to decide and there is no reason for this Court to interfere with the concurrent findings. The further contention is that if non seeking of a decree for mandatory injunction in the suit as originally filed is a defect, the first respondent has already filed appropriate application in the trial court for amendment of the plaint (its copy is produced and marked as Ext.R1 in this proceeding) to incorporate the prayer for mandatory injunction and to incorporate the servient tenement as well as the disputed portion of the way through that tenement as part of plaint schedule. Learned counsel has placed reliance on the decision in James Vs. Jaimon James (1998(1) KLT 233). 4. It is seen from the order/judgment under challenge that question whether something which the Court could not have granted by way of final relief in the suit could be granted by way of interim relief when the alleged alteration of the position regarding the disputed way was even prior to the institution of the suit, was not considered by the courts below. True that in the decision relied by learned counsel for respondents in such a O.P(C).No.2510 of 2011 -: 6 :- situation, even in the absence of a mandatory injunction prayed for in the plaint, relief of mandatory injunction was granted by way of interim relief but, the larger question which I have stated above, was not raised or decided in that decision. The position may be different where the alleged alteration of position was after the institution of the suit. But in view of the decision I propose to take in this mater I am not pronouncing verdict on that question. I also bear in mind that though after filing of the suit, first respondent has filed an application for amendment of the plaint to incorporate the prayer for mandatory injunction. 5. The further fact I must bear in mind is that the disputed way passing through the property of petitioners was not scheduled in the plaint. What is scheduled in the plaint is only the dominant tenement. When relief is sought with respect to immovable property Rule 3 Order VII of the Code of Civil Procedure requires that the plaint shall contain a description of such property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. I do not forget that in Ext.R1, application for amendment these defects (if at all it be so) are also requested to be corrected by way of amendment. Of course it is for the trial O.P(C).No.2510 of 2011 -: 7 :- court to decide whether the application for amendment has to be allowed or not. 6. Now the fact remained that as on the date respondent instituted the suit, neither was there any prayer for mandatory injunction in the plaint, nor was the disputed way passing through property of petitioners scheduled in the plaint. These aspects were not considered by the courts below while granting interim relief. In that view of the matter, I am inclined to think that the matter has to go back to the learned Munsiff for fresh decision after disposal of the application for amendment. 7. I referred to the suggestions learned Senior Advocate for petitioners made to provide alternative access to the respondent for the time being. That is a matter which the trial court could look into, whether such an interim arrangement could be made subject of course to the decision in the suit. Hence I am not expressing any opinion regarding acceptability or otherwise of the suggestions made by the learned Senior Advocate. 8. But, so far as the order of prohibitory injunction is concerned, present situation has to continue. Parties have to maintain condition of the disputed way as reported by the Advocate Commissioner. O.P(C).No.2510 of 2011 -: 8 :- Resultantly this original petition is allowed in the following lines: (i) Common order passed by the learned Munsiff, Tirur on I.A.Nos.14 and 15 of 2011 in O.S.No.6 of 2011 as confirmed by the learned Sub Judge, Tirur in C.M.A.Nos.10 and 11 of 2011 are set aside and I.A.Nos.14 and 15 of 2011 are remitted to the learned Munsiff for fresh decision in the light of the observations made above. (ii) Until appropriate orders are passed by the learned Munsiff it is directed that parties shall maintain the condition of the disputed way as reported by the Advocate Commissioner in his report and sketch. (iii) Learned Munsiff is directed to dispose of I.A.Nos.14 and 15 of 2011 after I.A.No.1582 of 2011 (for amendment of the plaint) is disposed of. (iv) Learned Munsiff shall expedite the proceeding and dispose of the applications as early as possible, at any rate within one month from the date of receipt of a copy of this judgment. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-