IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 15070 of 2010(O) -------------------------- CMA.30/2009 of SUB COURT, TIRUR .................... PETITIONER: --------------- KARIKOLAKKATT ABDUL KAREEM, S/O.MOIDEEN @ CHERIYATH, ANANTHAVOOR AMSOM, KAZHUTHAKKARA DESOM, POST VAIRANKODE, TIRUR TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER SIDDEEQ AKBAR, S/O.HAMZA KARIKKULAKKAD HOUSE, ANANTHAVOOR AMSOM, KAZHUTHAKKARA DESOM, POST VAIRANKODE, TIRUR TALUK MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENTS: --------------- 1. CHERADA KUNHIPPOCKER @ BAVA, S/O.ENTHEENKUTTY, ANANTHAVOOR AMSOM, KAZHUTHAKKARA DESOM, POST VAIRANKODE, TIRUR TALUK, MALAPPURAM DISTRICT. 2. THIRUVAKALATHIL ABOOBACKER, S/O.HASSANKUTTY, ANANTHAVOOR AMSOM, KAZHUTHAKKARA DESOM, POST VAIRANKODE, TIRUR TALUK MALAPPURAM DISTRICT. 3. KARIKKOLAKKAT SAIDALAVI, S/O.MOIDEEN @ CHERIYATH, ANANTHAVOOR AMSOM, KAZHUTHAKKARA DESOM, POST VAIRANKODE, TIRUR TALUK MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.15070 of 2010 --------------------------------------- Dated this 18th day of May, 2010 JUDGMENT The writ petitioners, appellants in C.M.A.No.30 of 2009 of learned Sub Judge, Tirur and defendants in O.S.No.25 of 2009 of the court of learned Munsiff, Tirur challenge judgment of learned Sub Judge in C.M.A.No.30 of 2009 confirming order for mandatory injunction issued by the learned Munsiff on I.A.No.143 of 2009. The dispute is between the neighbouring owners as to entitlement of respondents to use the pathway referred to in the plaint schedule. According to them, suit property along with other items originally belonged to respondent No.1 and his brother, Kunhalankutty as per Ext.A6, partition deed No.256 of 1989 and in that partition, a pathway was provided for access to various items including the suit property set part to the share of respondent No.1. Thereafter there was some assignments in respect of the properties referred to in Ext.A6 and respondents claimed that they have the right to use the disputed pathway for access to their properties by virtue of the partition deed and the subsequent assignment deeds. Petitioners/defendants contended that the disputed pathway claimed by the respondents is not through their property and that W.P.C.No.15070 of 2010 2 the property belonging to respondent No.1 is plot C while plots E and F belonged to the said Kunhalankutty. The way provided to the property of respondent No.1 was along the east of plot F and south of plot E. According to them, respondents have no right or interest in any portion of the property belonging to them. Along with the suit respondents filed I.A.No.120 of 2009 for an order of temporary injunction. Learned counsel for respondents tells me that no ad interim order of injunction was passed on that application but the advocate commissioner appointed by the court immediately after institution of the suit visited the property and reported about existence of the disputed way through which the respondents were gaining access to their property. Later came the alleged obstruction to the pathway at the hands of petitioners following which advocate commissioner again inspected the property and reported about the obstruction. It is later that I.A.No.143 of 2009 was filed for mandatory injunction to remove the said obstruction. Learned Munsiff allowed the applications for prohibitory injunction and mandatory injunction and in challenge of I.A.No.120 of 2009, petitioners filed C.M.A.No.29 of 2009 (which learned Senior Advocate appearing for petitioners tells me is pending consideration before the learned Sub Judge). C.M.A.No.30 of 2009 was directed against the order on I.A.No.143 of 2009. In the course of the appeal, a 3rd report and plan obtained in the trial court were W.P.C.No.15070 of 2010 3 produced by the petitioners in the C.M.Appeal obviously to buttress their contention that the disputed way is not part of the property belonging to the petitioners and lies elsewhere. Learned Sub Judge after consideration of the relevant facts and also the law on the point as to the grant of temporary mandatory injunction came to the conclusion that on the facts and circumstances of the case it is absolutely necessary that respondents are permitted to make use of the disputed pathway referred to in the plaint schedule which is proved to be obstructed by the petitioners. Accordingly C.M.Appeal No.30 of 2009 was dismissed. Learned Senior Advocate appearing for the petitioners contends vehemently that without proper identification of the disputed way learned Sub Judge was not correct in confirming the order on I.A.No.143 of 2009. It is also the submission of learned Senior Advocate that since pre-trial steps are over without directing removal of the alleged obstruction this court may direct disposal of the suit as expeditiously as possible. Learned counsel for respondents has invited my attention to the reports and plans submitted by the advocate commissioner before and after the alleged obstruction and argued that existence of the disputed way and its obstruction are clearly referred to by the advocate commissioner. It is also the submission of learned counsel that there is nothing to show that respondents have any other access to their properties and that it is in the above circumstances that W.P.C.No.15070 of 2010 4 learned Sub Judge has confirmed the order on I.A.No.143 of 2009. 2. The law as to the power of this court to interfere with interlocutory orders passed by the subordinate civil courts, under Articles 226 and 227 of the Constitution has been laid down by the Supreme Court in various decisions (for reference see Abdul Rasak Vs. Mangesh Rajaram Wagle (2010 (1) KLT SN 33 (Case No.42)). The Supreme Court says that supervisory jurisdiction under Article 227 of the Constitution is to be exercised to keep the subordinate courts within their bounds of jurisdiction. When the subordinate court assumed a jurisdiction which it does not have or it failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High court may step in to exercise its supervisory jurisdiction. In this case, the contention of learned Senior Advocate is that there is no proper identification of the disputed way. It is for the said purpose that the 3rd report and plan of the advocate commissioner are being pressed into service. That certainly is a matter which the trial court has to decide but, for the purpose of deciding the interlocutory application the 1st and 2nd reports and plans prepared by the advocate commissioner are sufficient and clearly indicate existence of the pathway claimed by the respondents and leading to the properties belonging to them. W.P.C.No.15070 of 2010 5 The obstruction of that pathway is also clear from the 2nd report. As of now there is no material to show that respondents have any access to their properties. 3. It is not as if the court is powerless to grant interim mandatory injunction. When perennial nuisance is caused it is within the power of the court to issue interim order of mandatory nature to abate such nuisance. The obstruction caused to the way results in long standing nuisance to the respondents. Learned counsel for respondents submit that right from 11-02-2009 onwards, respondents are not able to go to their properties. It is in such a situation learned Sub Judge confirmed the order on I.A.No.143 of 2009. I do not find any jurisdictional error, illegality or any grave injustice so that this court is required to interfere under Article 227 of the Constitution. There is no merit in this writ petition. But I make it clear that trial court shall decide all relevant issues untrammelled by the observations and/or findings contained in the impugned order/judgment. With the above direction the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-