IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 14944 of 2010(O) -------------------------- CMA NOS.33 & 34 OF 2009 OF SUB COURT, TIRUR IA NOS.2018 & 2129 OF 2009 IN OS NO.178/2009 OF MUNSIFF'S COURT, PARAPPANANGADI. PETITIONER(S): --------------- 1. PATHUMMU,W/O.LATE CHUKKAN ISMAIL, A.R.NAGAR AMSOM DESOM, TIRURANGADI TALUK MALAPPURAM DISTRICT. 2. HANEEFA,S/O.DO. DO. DO. 3. HAMEED,S/O.DO. DO. DO. BY ADV. SRI.V.C.MADHAVANKUTTY RESPONDENT(S): --------------- CHATHAMBADAN SAIDALAVI,S/O.MOHAMMED, THALAPARA, MOONIYOOR,TIRURANGADI, MALAPPURAM DISTRICT. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.14944/2010 ` APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF REPORT DATED 14.9.2009 IN IA NO.2019/2009 IN OS 178/2009 FILED BY ADVOCATE COMMISSIONER BEFORE MUNSIFF'S COURT, PARAPPANANGADI EXT.P1(a) TRUE COPY OF SKETCH SUBMITTED BY ADVOCATE COMMISSIONER IN IA NO.2019/2009 IN OS NO.178/2009 BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI EXT.P2 TRUE COPY OF ORDER DATED 18.9.2009 IN IA NO.2018/2009 IN OS NO.178/2009 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI EXT.P3 TRUE COPY OF COUNTER AFFIDAVIT DATED 25.9.2009 IN IA NO.2018/2009 IN OS 178/2009 FILED BY PETITIONERS HEFREIN BEFORE MUNSIFF'S COURT, PARAPPANANGADI EXT.P4 TRUE OPY OF ORDER DATED 9.10.2009 IN IA NO.2018/2009 IN OS 178/2009 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI EXT.P5 TRUE COPY OF IA NO.2129/2009 DATED25.099.2009 IN OS 178/2009 FILED BY THE RESPONDENT HEREIN BEFORE MUNSIFF'S COURT, PARAPPANANGADI EXT.P6 TRUE COPY OF COUNTER DATED 30.9.2009 FILED BY THE PETITIONERS IN IA NO.2129/2009 DATED 25.9.2009 IN OS NO.178/2009 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI EXT.P7 TRUE COPY OF ORDER DATED 9.10.2009 I IS NO.2129/2009 IN OS NO.178/2009 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI EXT.P8 TRUE COPY OF COMMON JUDGMENT DATED 24.3.2010 IN CMA NOS.33 AND 34 OF 2009 PASSED BY SUBORDINATE JUDGE'S COURT, TIRUR. THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.14944 of 2010 -------------------------------------- Dated this the 21st day of May, 2010. JUDGMENT Plaint B schedule property originally belonged to Ismail, husband of petitioner No.1 and father of petitioner Nos.2 and 3 as per partition deed No.1682 of 1980. There was successive assignments. It came to the respondent as per assignment deed No.3434 of 1999. According to the respondent, plaint A schedule is item No.II in partition deed No.1682 of 1980 which was provided as a way to the properties dealt with by the partition deed. It is the case of respondent that he has purchased plaint B and C schedules which originally belonged to the predecessor-in-interest of petitioners and as per the partition deed in question, he is entitled to use plaint A schedule way for access to plaint B and C schedules. It is his contention that he has no other means of access to plaint B and C schedules where he has constructed a two storied building. He has been taking building materials to plaint B and C schedules in vehicles through plaint A schedule. Later, petitioners attempted to obstruct his use of plaint A schedule and hence he filed the suit on 10.09.2009 alleging that cause of action for suit has arisen on 05.09.2009 when petitioners tried to prevent him from using plaint A schedule. Petitioners contended that respondent has no right or interest over plaint A schedule and that they had permitted respondent to take building materials in vehicles through plaint A schedule in connection with construction of building in plaint B and C schedules but that WP(C) No.14944/2010 2 consent was withdrawn on 01.09.2009. It is their contention that plaint B schedule is not included in partition deed No.1682 of 1980. Respondent prayed for an interim order of injunction. In the meantime, alleging that petitioners have caused obstruction to the use of plaint A schedule by stacking stones respondent filed I.A.No. 2129 of 2009 for an order of mandatory injunction for removal of such obstruction. Learned Munsiff allowed the applications for prohibitory and mandatory injunction. Those orders were challenged by petitioners in the court of learned Sub Judge in C.M.A. Nos.33 and 34 of 2009. Learned Sub Judge has dismissed Civil Miscellaneous Appeals as per Ext.P8, common judgment. Now challenge in this Writ Petition is to P4, P7 and P8 orders and judgment. Learned counsel for petitioners contend that respondent has no right over plaint A schedule and at any rate, there is nothing on record to show that obstruction was caused after the institution of suit. Instead, it is the case of petitioners that revoking permission granted to respondent to take vehicles through plaint A schedule they stacked stones on plaint A schedule on 01.09.2009 while the suit was filed only on 10.09.2009 without a prayer for mandatory injunction. In such a situation, courts below were not legally correct in entertaining I.A.No.2129 of 2009 for temporary mandatory injunction and widening scope of the suit itself. Learned counsel for respondent would contend WP(C) No.14944/2010 3 that obstruction admittedly caused by petitioners in plaint A schedule was on 10.09.2009 after institution of the suit and before the Advocate Commissioner inspected the properties. 2. There can be no dispute that if the alleged obstruction was before institution of the suit, there cannot be an application for temporary mandatory injunction unless the plaint contains a prayer for mandatory injunction, for, no court can grant by way of interim relief something which it cannot grant finally. Temporary mandatory injunction in the absence of a prayer for mandatory injunction in the suit is granted when the situation as on the date of suit is altered to the disadvantage of the party complaining after the institution of suit. 3. So far as the case on hand is concerned, alleging cause of action on 05.09.2009 respondent has filed the suit on 10.09.2009. Advocate Commissioner inspected the properties on 10.09.2009 at 5 p.m. and has reported about obstruction to plaint A schedule by stacking laterate stones on the said way. There is no dispute that the said act was done by petitioners, their claim being that it was done while revoking permission granted to respondent on 01.09.2009. Respondent would assert that the obstruction was made after institution of the suit on 10.09.2009 and before Advocate Commissioner inspected suit property. Commissioner has not reported oldness of the obstruction. Nor has the Commissioner reported that petitioners who are WP(C) No.14944/2010 4 present at spot at the time of inspection had told him that impugned obstruction was made on any day prior to institution of suit. I have gone through copy of plaint given to me by learned counsel for respondent . There is no reference to any obstruction to the A schedule way but it is stated that there was an attempt to obstruct the pathway on 05.09.2009 which according to respondent gave him cause of action for the suit. As the situation now stands, there is no material to show that the obstruction referred to by Advocate Commissioner in page No.3 of his report was made on any day prior to the institution of suit. I stated that there is no mention in the plaint about any such obstruction. Prima facie there is no reason to think that if any such obstruction was made by petitioners prior to institution of the suit, respondent would fail to mention that in the plaint and seek appropriate reliefs. Having regard to these circumstances I am not persuaded to accept the contention of learned counsel for petitioners that obstruction was caused before institution of the suit on 10.09.2009 and hence prayer for temporary mandatory injunction cannot stand. 3. So far as case of respondent is concerned, Advocate Commissioner has reported that except plaint A schedule he has no other means of access to the plaint B and C schedules. Question whether respondent is entitled to the relief finally is a matter required to be decided by the trial court after recording evidence. Learned counsel for petitioners have a complaint that impugned orders and judgment are of such nature that nothing is WP(C) No.14944/2010 5 left for the trial court to decide. I make it clear that any finding/observation made by the courts below as to the merit or otherwise of .the claim shall not influence trial court in deciding the case on its merit. 4. For the foregoing reasons I do not find reason to interfere with Exts.P4, P7 and P8, orders and judgment. Resultantly with the observation I have made above this Writ Petition is dismissed. THOMAS P.JOSEPH, Judge. cks