IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 WP(C).NO. 9487 OF 2010(O) ---------------------------------------- I.A. NO.2343 OF 2009 IN A.S. NO.33 OF 2009, SUB COURT, OTTAPPALAM PETITIONER(S): ------------------------ MATHUKUTTY,AGED 53 YEARS, S/O.PALLITHAZHATH VEETTIL MATHEW, MUKKALI,KALLAMALA AMSOM DESOM, MANNARKKAD TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENT(S): -------------------------- THANKAM,D/O.MEPPARU VEETTIL SARASWATHI, MUKKALI, KALLAMALA AMSOM DESOM,MANNARKKAD TALUK. ADV. SRI.A.JAYASANKAR FOR R1 SRI.MANU GOVIND FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.9487 OF 2010 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 31.7.2009 IN O.S. NO.89 OF 2002 FILED BY THE RESPONDENT BEFORE THE MUNSIFF- MAGISTRATE'S COURT, MANNARKKAD. EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION FOR INTERIM INJUNCTION DATED 30.08.2009 (I.A. NO.2343 OF 2009) FILED BY THE RESPONDENT IN A.S. NO.33 OF 2009 BEFORE THE SUB COURT, OTTAPPALAM. EXHIBIT P3 TRUE COPY OF THE COUNTER DATED 23.09.2009 FILED BY THE PETITIONER IN I.A. NO.2343 OF 2009 IN A.S. NO.33 OF 2009 BEFORE THE SUB COURT, OTTAPPALAM. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 31.10.2009 IN I.A. NO.2343 OF 2009 IN A.S. NO.33 OF 2009 PASSED BY THE SUB COURT, OTTAPPALAM. EXHIBIT P5 TRUE COPY OF THE REPORT AND SKETCH OF THE COMMISSIONER DATED 01.12.2009 IN I.A. NO.2854 OF 2009 IN A.S. NO.33 OF 2009 BEFORE THE SUB COURT, OTTAPPALAM. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== W.P(C) No.9487 of 2010 ==================================== Dated this the 21st day of July, 2011 J U D G M E N T First defendant in O.S. No.89 of 2002 of the court of learned Munsiff-Magistrate, Mannarkkad is the petitioner before me challenging the order passed by learned Sub Judge, Ottappalam on I.A. No.2343 of 2009 in A.S. No.33 of 2009 granting an order of temporary injunction favour of respondent-plaintiff and restraining petitioner from causing any obstruction to the latter making use of the disputed way. According to the respondent, plaint A schedule belonged to her and she was enjoying access to that property through the B schedule which according to the respondent, petitioner attempted to annex to his property. Petitioner disputed existence of a way and contended that the disputed B schedule way is part of property belonging to him. Trial court dismissed the suit holding that existence of way is not properly proved. Respondent challenged that judgment and decree in appeal (A.S. No.33 of 2009) and prayed for interim order of injunction vide I.A. No.2343 of 2009. Learned Sub Judge allowed that request bearing mind in that until disposal of the suit there W.P(C) No.9487 of 2010 -: 2 :- was an order of injunction. The order on I.A. No.2343 of 2009 is under challenge. Learned counsel for petitioner contended that there is no such way in existence as rightly found by the learned Munsiff-Magistrate and at any rate after disposal of the suit petitioner has effected improvements in his property and now the way as granted by the learned Sub Judge as per order on I.A. No.2343 of 2009 goes through the middle of property of petitioner. Learned counsel has invited my attention to the report of the Advocate Commissioner obtained in the appeal where of course there is reference to the remnants of coconut saplings and plantains found along the disputed way. 2. Learned counsel for respondent contended that through out pendency of suit there was an order of injunction which was obeyed by the petitioner and what the appellate court has granted is only an order in continuation of the said order with which petitioner cannot be said to be prejudiced. It is submitted that on the facts and materials there is no reason to interfere with the order and learned Sub Judge could be directed to dispose of the appeal as early as possible. 3. I have heard learned counsel on both sides and gone through the records produced before me. I have also gone W.P(C) No.9487 of 2010 -: 3 :- through the copy of report and plan obtained in the appeal. On going through the plan it is seen that property of petitioner is situated towards south of plaint A schedule claimed by the respondent and that the way claimed by respondent originates from the Panchayat road on the extreme south and goes almost through the middle of property of petitioner before it reaches plaint A schedule belonging to the respondent. It is pointed out that petitioner is residing in the property on the south of plaint A schedule. 4. I must bear in mind that existence of a way was not accepted by the learned Munsiff and learned Sub Judge is yet to decide whether judgment and decree of the trial court require interference. In that situation what is required is only to make some interim arrangement so that access to the plaint A schedule is not cut off as a whole. Having heard counsel on both sides I am inclined to think that some alternative arrangements can be made so that respondent can gain access to the plaint A schedule from the Panchayat road on the extreme south through the property of petitioner. It is pointed out to me that there is a mobile tower towards western portion of the property of petitioner. Learned counsel for petitioner has in fairness agreed W.P(C) No.9487 of 2010 -: 4 :- that petitioner will provide a way having a width of one meter (without prejudice to all the contentions petitioner has raised in the suit and appeal) for access to plaint A schedule. I am inclined to think that the said suggestion could be accepted and enforced as an interim arrangement. Resultantly, this Writ Petition is allowed and the impugned order is set aside in the following lines: (a) Petitioner shall provide a way having a width of not less than one meter along the eastern side of the mobile tower situated in the property of petitioner, originating from the Panchayat road on the extreme south and reaching the plaint A schedule on the north of property of petitioner. (b) It is open to the respondent to put up a slab over the drain (without in any way affecting the drainage) where the proposed way touches property of petitioner. W.P(C) No.9487 of 2010 -: 5 :- (c) Petitioner shall provide the alternative way aforesaid within ten days from this day. (d) Until the alternative way is provided, notwithstanding that I have set aside the order under challenge, respondent is permitted to make use of the way as per the order on I.A. No.2343 of 2009. (e) On the alternative way being provided, respondent shall use only the said way for access to the plaint A schedule. He shall not therefore use the way as per order on I.A. No.2343 of 2009. (f) It is made clear that I have not gone into the merits of the claims made by the respective parties in the suit and that the interim arrangement made above is only until disposal of the appeal unless parties reached a W.P(C) No.9487 of 2010 -: 6 :- settlement and decided to continue the arrangement even after the disposal of the appeal. Learned Sub Judge shall dispose of the appeal untrammelled by the observations or the interim arrangement made as per this judgment. THOMAS P. JOSEPH, JUDGE. vsv