IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 27302 of 2010(O) -------------------------- IA NO.2541/2007 IN AS.81/2007 of SUB COURT, TIRUR OS NO.137/2006 OF MUNSIFF-MAGISTRATE COURT, PONNANI .................... PETITIONER(S): --------------- VELAYUDHAKURUP,S/O.CHEMBIL VADAKKEPUTHANVEETTIL LAKSHMI AMMA,PONNANI TALUK, NANNAMUKKU AMSOM DESOM,MALAPPURAM DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH SMT.N.N.PRASEEDA RESPONDENT(S): --------------- 1. MURALEEDHARAN,S/O.AREEKKARA ILLATH PURUSHOTHAMAN ILAYATH,NANNAMUKKU AMSOM DESOM, NANNAMUKKU-678 575,PONNANI TALUK, MALAPPURAM DISTRICT. 2. SUBRAMANIAN,S/O.KANDAMPULLI VELAY, NANNAMUKKU AMSOM DESOM,NANNAMUKKU-678 575, PONNANI TALUK, MALAPPURAM DISTRICT. 3. SUMATHI,W/O.SUBRAMANIAN,DO. DO. 4. MUHAMMED,S/O.ERANHIPPURATH VEERAVUNNI,DO. DO. ADV. SRI.JAMSHEED HAFIZ FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)27302/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE REPORT AND SKETCH OF THE COMMISSIONER AND DATED 10.8.2006 IN OS NO.137/2006 BEFORE THE MUNSIFF-MAGISTRATE COURT, PONNANI EXT.P2 TRUE COPY OF JUDGMENT IN OS137/2006 DATED 31.10.2007 PASSED BY MUNSIFF- MAGISTRATE COURT, PONNANI EXT.P3 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 17.12.2007 IN AS NO.81/2007 FILED BY THE RESPONDENTS HEREIN BEFORE THE SUBORDINATE JUDGE'S COURT, TIRUR EXT.P4 TRUE COPY OF AFFIDAVIT IN SUPPORT OF PETITION FOR STAY (IA NO.2541/2007) AND DATED NIL IN A.S.NO.81/2007 FILED BY THE RESPONDENTS HEREIN BEFORE THE SUBORDINATE JUDGE'S COURT, TIRUR EXT.P5 TRUE COPY OF COUNTER DATED 3.1.2008 FILED BY THE PETITIONER HEREI IN IA 2541/2007 IN AS 81/2007 BEFORE THE SUB COURT, TIRUR EXT.P6 TRUE COPY OF ORDER DATED 23.12.2009 IN IA NO.2541/2007 IN AS 81/2007 PASSED BY SUBORDINATE JUDGE'S COURT, TIRUR EXT.P7 TRUE COPIES OF PHOTOGRAPHS SHOWING THE PLAINT SCHEDULE PROPERTIES (3 IN NOS.) //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.27302 of 2010 -------------------------------------- Dated this the 12th day of October, 2010. JUDGMENT Plaintiff No.1 in O.S.No.137 of 2006 of the court of learned Munsiff- Magistrate, Ponnani and respondent in A.S.No.81 of 2007 of the court of learned Sub Judge, Tirur is the petitioner before me, aggrieved by Ext.P6, order as per which learned Sub Judge granted stay of execution of the decree for mandatory injunction. 2 Dispute concerns plaint C schedule way lying on the south of plaint A and B schedules belonging to petitioner/plaintiff No.1 and plaintiff No.2. There was some proceedings before the Sub Divisional Magistrate initiated by petitioner and others which did not succeed and thereon petitioner and plaintiff No.2 filed the suit before learned Munsiff-Magistrate for a declaration that plaint C schedule is not a private way and for a decree for mandatory injunction to direct the respondents to remove the obstruction allegedly caused by them which prevented petitioner and plaintiff No.2 from gaining access to their properties from the disputed plaint C schedule. The suit was resisted by the respondents on various grounds. Learned Munsiff-Magistrate did not grant the declaration prayed for but, on the strength of the report of Advocate Commissioner and other evidence regarding existence of plaint C schedule along south of plaint A and B schedule properties and finding in favour of alleged obstruction caused by the respondents granted a decree for mandatory injunction in favour of petitioner and plaintiff No.2. Challenging that judgment WP(C) No.27302/2010 2 and decree respondents preferred A.S.No.81 of 2007 before learned Sub Judge and filed I.A.No.2145 of 2007 for stay of operation of the decree. Learned Sub Judge after hearing both sides granted a stay of execution of the decree for mandatory injunction. That order is under challenge. Learned counsel for petitioner contends that except the plaint C schedule way petitioner/plaintiff No.1 has no other means of access to the plaint A schedule belonging to him and where he is residing. Learned counsel has produced photographs of the way and the obstruction allegedly caused by the respondents. Learned counsel for respondents contended that plaint A and B schedules are lying contiguous and that the property where plaintiff No.2 is residing abuts public road on the east so that petitioner and plaintiff No.2 can have direct access from the public road. It is also pointed out that at no point of time during pendency of the suit in the trial court petitioner or plaintiff No.2 were using plaint C schedule. In such a situation granting permission to use plaint C schedule at this stage would amount to allowing petitioner to execute the decree in his favour and which is under challenge in the appeal. 3. There is dispute as to the nature of right petitioner and plaintiff No.2 claims over plaint C schedule. Learned Munsiff-Magistrate also did not grant the declaration prayed for whatever be the reason thereof and the decree is confined to the mandatory injunction prayed for. It is not disputed that at no point of time during pendency of the suit petitioner was using plaint C schedule. In such a situation I do not find reason to interfere with the discretionary order of stay passed by the learned Sub Judge as to the execution of decree for mandatory WP(C) No.27302/2010 3 injunction and create a new situation. But, the grievance of petitioner has to be redressed. That could be done by directing learned Sub Judge to expedite disposal of the appeal itself. I am told that steps in the appeal are over and that it is ripe for hearing. Learned Sub Judge is directed to dispose of the appeal giving it top priority as early as possible, at any rate within a month from the date of receipt of a copy of this judgment. Writ Petition is disposed of with the above direction. THOMAS P.JOSEPH, Judge. cks