IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 FAO.No. 87 of 2011() -------------------- AGAINST THE ORDER DATED 18/02/2011 IN IA 702/2010 IN AS.33/2010 of D.C.& SESSIONS COURT,THODUPUZHA .................... APPELLANTS/RESPONDENTS/COUNTER PETITIONERS: ------------------------------------------------------------ 1. LEELA @ SUNDHARI, W/O.THANKAPPAN, MOONNILAVUNKAL (KANIKUDIYIL), P.O.THATTAKUZHA, UDUMBANNOOR VILLAGE. 2. THANKAPPAN, S/O.RAMAN, MOONNILAVUNKAL (KANIKUDIYIL), P.O.THATTAKUZHA, UDUMBANNOOR VILLAGE. BY ADV. MR.SHIRAZ ABDULLA MR.JOJO PAPPACHAN RESPONDENT/PETITIONER/APPELLANT: ------------------------------------------- JOSEPH S/O.MATHAI, CHERUNILATHU HOUSE, EDAMARUKU KARA, UDUMBANNOOR VILLAGE. ADV. MR.K.C.CHARLES FOR R1 MR.M.POLY MATHAI FOR R1 MR.P.CHELLAPPAN FOR R1 MR.E.N.HARI FOR R1 MR.VIMAL K.CHARLES FOR R1 MS.A.T.RENJU FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 87 of 2011 ORDER ON I.A.NO.972/2011 DISMISSED. 20.6.2011 SD/-HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ F.A.O.No.87 Of 2011 ---------------------- Dated this the 20th day of June, 2011. J U D G M E N T The respondents in A.S.No.33/2010 on the file of the District Court, Thodupuzha are the appellants. The order in I.A.No.702/2010 dated 18.2.2011 is under challenge. The appellant in A.S.No.33/2010 is the plaintiff in O.S.No.280/2007 on the file of the Munsiff Court, Thodupuzha. Suit was filed by the plaintiffs seeking declaration of prescriptive right over plaint B schedule road. The trial court, after trial, dismissed the suit finding that there is no sufficient evidence to grant a decree declaring prescriptive right of easement over plaint B schedule road. Admittedly, plaint B schedule road is passing through the property of the appellants. 2. After the dismissal of the suit, the learned Munsiff passed an order of status quo at the instance of the plaintiff directing the parties to maintain status quo for a period of one month as per order dated 25.3.2010. The trial court passed the judgment, dismissing the suit, on 24.3.2010. The plaintiff filed ::2:: F.A.O.No.87 Of 2011 I.A.No.702/2010 in appeal for restoration of the retaining wall which was demolished, alleging that the same was demolished in violation of the order of injunction passed by the learned Munsiff. The appellate court by an interim order directed the defendants to restore the western portion of the retaining wall on the plaint B schedule road, which was demolished as reported by the commissioner. This order is under challenge in this appeal. 3. This appeal was filed on 7.3.2011. The appellate court deputed a commissioner. The commissioner reported that the kaiyyala has been demolished. The commissioner also reported that the width of the passage is reduced by the construction made by the appellants/defendants. Based on the commissioner's report, the appellate court directed the commissioner to re-construct the retaining wall on plaint B schedule road to its original position. It is submitted at the Bar that under the supervision of the commissioner, in the place of the the retaining wall, another wall has been constructed. The construction of the wall was made pursuant to the order of interim mandatory injunction in the appeal. Since the ::3:: F.A.O.No.87 Of 2011 demolished passage was restored to its original position, no further directions are necessary in this case, pending A.S.No.33/2010. It is for the appellate court to hear the parties and decide the appeal on merits untrammelled by the observations made in the orders passed by the learned Munsiff and the District Judge. 4. In the facts and circumstances of the case, this Court is not inclined to go in to the merits of the case in this appeal. The District Court, Thodupuzha, is directed to dispose of the appeal, within a period of four months from the date of receipt of a copy of this judgment, in accordance with law. The appeal is disposed of as above. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-