IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WP(C).No. 2753 of 2008(C) --------------------------------------- PETITIONERS: ---------------------- 1. C.SIVADASAN, S/O.RAGHAVAN, `SREE SHYLAM', DHARMADAM AMSOM DESOM, KANNUR DISTRICT. 2. M.LALITHA, W/O.SIVADASAN, `SREE SHYLAM', DHARMADAM AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENTS: ------------------------ 1. RANJINI, W/O.MOHANAN, RESIDING AT MOON LIGHT, DHARMADAM AMSOM DESOM, KANNUR DISTRICT. 2. K.PRADEEPAN, S/O.GOPALAN, CHIRATHAZHA HOUSE, DHARMADAM AMSOM DESOM, KANNUR DISTRICT. 3. K.P.CHANDRASEKHARAN, S/O.GOPALAN, AMRUTHAKRIPA, DHARMADAM AMSOM AND DESOM, KANNUR DISTRICT. BY ADV. SRI.V.RAJAGOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2753/2008 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.160 OF 2007. EXT.P2: COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION FOR TEMPORARY INJUNCTION. EXT.P3: A ROUGH SKETCH OF THE LIE OF THE PROPERTY. EXT.P4: COPY OF THE COUNTER FILED BY THE 2ND PETITIONER TO THE I.A. EXT.P5: COPY OF THE ORDER DTD. 14/06/207 IN I.A.896 OF 2007 IN O.S.160 OF 2007. EXT.P6: COPY OF THE COMMISSION REPORT REFERRED TO IN THE ORDER ALONG WITH THE SKETCH. EXT.P7: COPY OF THE ORDER DTD. 17/09/2007 IN CMA 99/2007. /TRUE COPY/ P.A.TO JUDGE Kss M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 2753 OF 2008 --------------------- Dated this the 8th day of February, 2008 JUDGMENT This writ petition is preferred against the order of the District Judge, Thalassery in CMA 99/07 whereby the he directed the parties to maintain the status quo of the “D” schedule passage and also permitted the plaintiffs 1 to 3 to use it but made it clear that it was not a motorable one. 2. Aggrieved by that decision, defendants have come up with this writ petition. The plaintiffs have filed a suit for injunction with respect to “D” schedule pathway. According to them the said way has been used peacefully uninterruptedly and without any obstruction and as of right for more than 22 years and has acquired the right of easement. According to the plaintiffs there is a gate in between plaintiffs' and defendants' property. The defendants with an intention to block the passage, had put a chain and lock from their side thereby preventing ingress and aggress to the plaintiffs' property from the Chirakkunni road. A perusal of the sketch would reveal that from the Railway Station Chirakkunni road, which is situated on the eastern side of the alleged “D” schedule pathway, starts and when it reaches the boundary of the defendants' property on the western side there is a gate. On the northern side is the 2nd plaintiff’s property and the southern side the 1st plaintiff’s property and there is a thodu over which a concrete slab is placed which gives an entry to the 3rd plaintiff’s property WPC NO 2753/08 2 and it joins at the Panchayat road. The case of the defendants is that it is never used as a way by these persons and there is no way at all and they have got other ways. Therefore the plaintiffs are not entitled to any reliefs. 3. A Commissioner was appointed and he had visited the property and submitted his report. A perusal of the report would reveal the following facts. It is reported that “D” schedule property starts from the western side with a width of 6 ½ feet and that the sides of the pathway is secured by boundaries and the pathway leads to the property of the plaintiffs and ends at the 3rd plaintiff’s property. It is also reported by him that at the end of the property of the defendants and the beginning of the property of the plaintiffs there is an iron gate. He has also noted about the presence of lacerate stones. It is also reported by the Commissioner that this pathway is the only access to the plaintiffs as well as the defendants property. On the date of inspection, the Commissioner noted that the gate was secured by a new chain and lock. Regarding the alternative way, one has to take a distance of 2 ½ Kms. The right claimed by the plaintiffs in the suit is that of easement by prescription. It is a matter that has to be dealt with in detail at the stage of evidence. Now the Commissioner has reported that a pathway is in existence. The Commissioner has also reported that there is a gate in between the plaintiffs' and defendants' property. It is also an admitted case that on the both sides of the gate there is a compound wall. So the very presence of a gate itself is indicative WPC NO 2753/08 3 of the fact that it is needed for having ingress and aggress. The further point regarding the 3rd plaintiff’s house, it can be seen that a concrete slab is put across the thodu and entry is provided therein. So the prima facie materials available would show the existence of a way. 4. The larger question of establishment of easement by prescription is a matter that has to be considered by the court after trial, i.e. after evidence is adduced. The court below also found that the passage does not seem to be used by vehicles and therefore held that the parties have to maintain the status quo of the “D” schedule pathway and permitted the plaintiffs 1 to 3 to use it only for walk and made it very clear that it cannot be used for taking motor vehicles. 5. I do not find any mistake committed by the learned District Judge in that aspect. The question of an alternative way will loom larger only in a case where the case set up by the plaintiffs is on the ground of easement of necessity. Since it is an easement of prescription and as there are some materials available regarding the existence of a pathway which is established by the presence of a gate, I feel that the order passed by the learned District Judge is strictly in accordance with law and therefore it does not require interference. Therefore I dispose of this writ petition making it clear that the trial court while disposing of the matter shall not be guided by any of the observations or findings in this judgment or in its own order or the order in WPC NO 2753/08 4 CMA. It has to be disposed of untrammeled by the observations contained in any of these orders. I am also informed that there is another matter with respect to the same way as OS 158/07. Considering the nature of the case and the subject matter involved in this case, I hope that the learned Munsiff will be able to bestow his best attention and then dispose of the matter, as expeditiously as possible. M.N.KRISHNAN, JUDGE vps WPC NO 2753/08 5