IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 15011 of 2009(O) -------------------------- CMA.33/2007 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.233/2006 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER: --------------- RAMACHANDRAN,S/O.KRISHNAN, M.S.BHAVAN,CHERUKUNNAM MURI,THEKKEKKARA VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENTS: --------------- 1. KARUNAN,S/O.NARAYANAN,HARISREE VEEDU, CHERUKUNNAM MURI,THEKKEKKARA VILLAGE. 2. SATHI,HARISREE VEEDU,CHERUKUNNAM MURI, THEKKEKKARA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.15011 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 2nd June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To call for the records leading to Exts.P9 and P12 and set aside the same. 2. Dismiss I.A.No.1233/06 in O.S.No.233/06 on the file of the Munsiff's Court, Mavelikkara; and 3. To issue such other directions as deemed necessary. The first defendant in O.S.No.233/06 on the file of the Munsiff's Court, Mavelikkara is the petitioner. Suit was filed by the respondent for perpetual prohibitory injunction to restrain the defendants, two in number, from trespassing upon the plaint schedule property or cutting open any pathway through it or committing any act of waste therein and for ancillary reliefs. Along with the suit, plaintiffs moved an application for interim relief of injunction, which after hearing both sides, was allowed by the learned Munsiff. Ext.P9 is copy of that order. Questioning the correctness of that order, the defendants preferred an appeal as C.M.A.No.33/07 before the District Court, Mavelikkara. The Additional District Judge-I, Mavelikkara, after W.P.C.No.15011/09 - 2 - hearing both sides, dismissed the appeal confirming the view taken by the learned Munsiff. Ext.P12 is copy of that order. Petitioner has filed the Writ Petition challenging the correctness of Exts.P9 and P12 orders contending the orders are unsustainable under law and facts. He seeks interference of those orders invoking the supervisory jurisdiction of this court under Article 227 of the Constitution. 2. I heard the learned counsel for the petitioner. Inviting my attention to Ext.P11, the resurvey plan over the properties covered by the subject matter, the learned counsel submitted the identification of the property made by the Commissioner and the views taken by both the courts relying on that report are patently erroneous. Some of the observations made by the learned District Judge while disposing of the C.M.Appeal are also brought to my notice raising an apprehension that they are likely to prejudice the mind of the trial judge and thereby likely to cause injury to the defendants. Perusing the records of the case, I find the disputes involved in the suit relate to the right of a pathway over which the plaintiffs have claimed exclusive title and possession. Whether the plaintiffs have such exclusive title and possession so as to restrain the defendants by way of a decree of perpetual prohibitory injunction is a W.P.C.No.15011/09 - 3 - matter to be resolved in the suit after both parties are given sufficient opportunity to lead evidence in support of their respective case. Prima facie, it is seen, even from the commission report that a gate leading to the house of the defendants also open to the disputed way indicating the defendants are also having access to that way. That, of course, is also a matter to be taken note of the trial judge while deciding the case on its merits. However, it has to be noticed that the decree of perpetual prohibitory injunction is sought for over the plaint schedule property and not in respect of the way contending that no way passes through that property to that of the defendants. That also require to be analysed on the basis of the materials to be produced by both sides. I do not want to express any opinion on the merits of the case, but, only compel led to make the above observations since I find there is some force in the apprehension raised by the counsel for the petitioner that some of the views taken by the learned District Judge while disposing of the appeal were not at all necessary as the only question which arose for consideration was forming an opinion as to whether the plaintiffs have a prima facie case for the interim relief of injunction. Whatever that be, I do not find any sustainable ground to interfere with the concurrent findings entered by both the W.P.C.No.15011/09 - 4 - courts below holding that the plaintiffs till the disposal of the suit is entitled to an interim order of injunction to restrain the defendants from trespassing upon their property and committing any waste therein. Learned Munsiff is directed to dispose the suit as expeditiously as possible, of course, after giving sufficient opportunity to both sides untrammelled by any of the observations in its order and also the judgment passed in the C.M.Appeal. The Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE