IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 OP(C).No. 4084 of 2011(O) ------------------------- AS.81/2011 of SUB COURT, PALA ............................................................ PETITIONER -------------------- BENNY,AGED 36 YEARS,S/O.THOMMAN, CHEKKEVAYALIL,VAZHEKKADU BHAGAM,CHENNADU KARA, POONJAR,THEKKEKARA VILLAGE. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.DIPU JAMES SRI.K.P.UNNIKRISHNAN (ELOOR) RESPONDENTS: --------------------- 1. THOMMACHAN,S/O.CHACKO,VADAKKEL HOUSE, VAZHEKKADU BHAGAM,CHENNADU KARA,POONJAR THEKKEKARA VILLAGE-686582. 2. ALEYKUTTY,W/O.CHACKO,VADAKKEL HOUSE, VAZHEKKADU BHAGAM,CHENNADU KARA,POONJAR THEKKEKARA VILLAGE-686582. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC NO. 4084 OF 2011 APPENDIX PETITIONER(S) EXHIBITS EXT-P1: TRUE COPY OF THE JUDGMENT DATED 28.07.2011 IN O.S.103 OF 2009 OF THE MUNSIFF'S COURT,ERATTUPETTA. EXT-P2: TRUE COPY OF I.A.682 OF 2011 IN O.S.103 OF 2009 BEFORE THE MUNSIFF'S COURT,ERATTUPETTA. EXT-P3: TRUE COPY OF OBJECTION TO EXT.P2 DTD.29.07.2011. EXT.P4: TRUE COPY OF ORDER DTD.29.07.2011 ON EXT.P2. EXT.P5: TRUE COPY OF THE ORDER DTD.19.09.2011 IN I.A.1543 OF 2011 IN A.S.81 OF 2011 OF THE SUB COURT,PALA. RESPONDENTS' EXHIBITS : NIL \\ TRUE COPY\\ PA TO JUDGE JM THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4084 of 2011 ==================================== Dated this the 13th day of December, 2011 J U D G M E N T Petitioner along with the deceased first plaintiff sued respondents for a decree for prohibitory injunction in the court of learned Munsiff, Erattupetta in O.S. No.103 of 2009 claiming that they have right of access through the plaint B schedule way. Respondents resisted the suit. Learned Munsiff after trial dismissed the suit against which petitioner filed A.S. No.81 of 2011 in the court of learned Sub Judge, Pala. In that appeal petitioner filed I.A. No.1543 of 2011 for a direction to the respondents to remove the gate alleging that in the meantime respondents installed a gate across the way and locked the same. Petitioner wanted I.A. No.1543 of 2011 to be disposed of even before calling the lower court records. Learned Sub Judge was constrained to dispose of that application with reference to the judgment of learned Munsiff. Learned Sub Judge observed that there is no reason to direct respondents to remove the gate or permit vehicular traffic through the disputed way but allowed petitioner and the members of his family right of pedestrian O.P(C) No.4084 of 2011 -: 2 :- traffic through the disputed way. Leaned Sub Judge accepted the undertaking made by the learned counsel for respondents that until disposal of the appeal respondents will allow petitioner and his family members to pass through the disputed way for which they will make provision in the gate. Accepting that, learned Sub Judge has disposed of I.A. No.1543 of 2011 guaranteeing right of petitioner and family members to have pedestrian passage until disposal of the suit. That order is under challenge. 2. It is contended by learned counsel that since the lock and key are in the custody of respondents they can lock the gate at any time which will affect pedestrian traffic of petitioner and his family members. Learned counsel argued that petitioner and his family members have a right to take vehicle through the disputed way. 3. So far as the claim to take vehicle is concerned, as things now stand, right claimed by petitioner through the disputed way has been negatived by the learned Munsiff and the learned Sub Judge is yet to consider the challenge to that finding. 4. So far as pedestrian traffic permitted for petitioner and family members is concerned I make it clear that if any obstruction is caused to the petitioner and his family members in O.P(C) No.4084 of 2011 -: 3 :- making use of the disputed way for pedestrian passage it is open to the petitioner to bring that matter to the notice of the learned Sub Judge and seek appropriate direction in that matter. Original Petition is disposed of with the above direction. THOMAS P. JOSEPH, JUDGE. vsv