IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 OP(C).No. 265 of 2010(O) ------------------------ CMA.40/2010 of I ADDL. DISTRICT COURT, THIRUVANANTHAPURAM IA 10864/09 IN OS.1955/2009 of III ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... PETITIONERS: ------------------------------ 1. MARIAMMA @ SUSI, W/O.MANI, ALLINE VIEW, NEAR AIR PORT ROAD, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. 2. MANI, W/O.SASI, RESIDING AT DO. DO. BY ADV. SMT.M.HEMALATHA RESPONDENT(S): --------------- JUSTIN JOHN, TC.34/1564(6), HAPPY HOME, VALLAKKADAVU P.O., THIRUVANANTHAPURAM - 695 008. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.265 of 2010 -------------------------------------- Dated this the 11th day of October, 2010. JUDGMENT Defendants in O.S.No.1955 of 2009 of the court of learned Additional Munsiff-III, Thiruvananthapuram are the petitioners before me challenging the order on I.A.No.10864 of 2009 as modified by the learned Additional District Judge-I, Thiruvananthapuram in C.M.A.No.40 of 2010. Respondent/plaintiff claimed that plaint A schedule belonged to him as per Ext.A1 (marked in the trial court) assignment deed No.3487 of 2009 and by that assignment deed he has right to enjoy plaint B schedule road leading from the Airport-Beach road to the plaint A schedule and having a width of three metres. It is also the case of respondent that on the south of plaint B schedule is the property of petitioners and that the disputed way is bounded by compound wall on the north and south. Petitioners allegedly made certain attempts to demolish the compound wall and annex a portion of plaint B schedule to their property. They allegedly obstructed use and enjoyment of plaint B schedule by respondent/plaintiff. Thereon respondent filed the suit for a decree for prohibitory injunction. Vide I.A.No.10804 of 2009 there was a request for temporary injunction. Learned Additional Munsiff observed in the order that petitioners/defendants had not filed any written objection to the application. But according to learned counsel for petitioners written objection was provided a copy of which is produced in this OP(C) No.265/2010 2 Court as Ext.P4. Whatever that be, learned Additional Munsiff vide Ext.P5, order granted temporary injunction holding that respondent/plaintiff has convincingly established a prima facie case in his favour. Petitioners took up the matter in appeal before learned Additional District Judge-I, Thiruvananthapuram. Learned Additional District Judge has observed that it is not pleaded anywhere in the plaint or in the application how the respondent/plaintiff got 'possession' over plaint B schedule or over the compound wall which is situated in the property of petitioners/defendants. Hence learned Additional District Judge declined relief against alleged demolition of compound wall which is situated in the property of petitioners. Learned Additional District Judge modified Ext.P5, order restraining petitioners not to cause any obstruction to the user of plaint B schedule way by the respondent for access to plaint A schedule. Learned counsel contends that there is no such way as claimed by the respondent and that it is a vehicle parking area of petitioners and that has been described as plaint B schedule way and in respect of which an order of injunction was passed. In consequence of that petitioners are not able to park their vehicles. Learned counsel has referred to the relevant documents and also the judgment/order under challenge. Ext.A1 marked in the trial court (copy of sale deed No.3487 of 2009 dated 09.10.2009) as per which respondent/plaintiff got title and possession over plaint A schedule is being relied upon by the respondent to OP(C) No.265/2010 3 claim access through plaint B schedule. The width of the way is described as three metres. Advocate Commissioner has reported about the existence of the disputed way having a width of about three metres and originating from Sankumugham-Valiyathura road and leading towards west through which access to plaint A schedule is possible. Though in the plaint length of the disputed way is stated as 50 metres, Advocate Commissioner found it as 55 metres. Advocate Commissioner reported oldness of the compound wall on either side as about ten years. Exts.A2 and A3 are prior documents of respondent. Learned Additional Munsiff observed from Exts.A1 to A3 that the predecessors- in-interest of respondent/plaintiff had right over the disputed way (over which easement by grant is allegedly granted in favour of respondent). Materials prima facie disclosed existence of the disputed way and the right claimed by respondent over it. In the circumstances I do not find reason to interfere with the order of learned Additional Munsiff as confirmed by the learned Additional District Judge. If the petitioners have a grievance that the order of injunction causes inconvenience to them it is open to the petitioner to request learned Munsiff for expeditious disposal of the suit if the pre-trial steps are over. Having heard counsel and gone through the records I am not satisfied that the order of learned Additional Munsiff as confirmed by the learned Additional District Judge calls for interference under Article 227 of the Constitution. I make it clear that it OP(C) No.265/2010 4 will be open to the petitioners to raise all their contentions before the learned Additional Munsiff who shall decide the suit untrammelled by the findings and observations contained in the impugned order/judgment or in the judgment of this Court. Original Petition is dismissed with the above observation. THOMAS P.JOSEPH, Judge. cks