IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 OP(C).No. 2354 of 2011(O) ------------------------------------- CMA.NO.36/2009 of ADDL.SUB COURT, IRINJALAKUDA OS.NO. 705/2009 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER -------------------- ABDUL RAHIM, AGED 52 YEARS, S/O. KOCHU MOIDEN, PADINJAREVEETIL HOUSE, AZHIKKODE, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S): -------------------------- N.A. MOHAMMED, S/O. ALIKUNJI, NAMBOODIRIMADATHIL HOUSE, AZHIKKODE, KODUNGALLUR, AZHIKKODE.P.O., THRISSUR DISTRICT. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2354/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN OS NO.705/2009 OF MUNSIFF COURT KODUNGALLUR. P2 COPY OF THE REGISTERED ASSIGNMENT DEED NO.2201/82 DATED 09/06/82. P3 COPY OF THE REGISTERED ASSIGNMENT DEED NO.2205 DATED 16/6/82. P4 COPY OF THE ASSIGNMENT DEED DATED 17/3/2009. P5 COPY OF THE SALE DEED NO.3391/1989 DATED 9/11/1989. P6 COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 21/10/2009. P7 COPY OF THE WRITTEN STATEMENT DATED 21/10/2009. P8 COPY OF THE ORDER OF THE MUNSIFF COURT IN I.A.NO.1570/2009 IN OS.705/2009 DATED 19/11/09. P9 COPY OF THE ORDER IN I.A.NO.1755/2009 P10 COPY OF THE JUDGMENT IN CMA.36/09 AND 37/09. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2354 of 2011 ==================================== Dated this the 22nd day of July, 2011 J U D G M E N T Petitioner is the first defendant in O.S. No.705 of 2009 of the court of learned Munsiff, Kodungallur challenging Ext.P10, judgment dated May 31, 2011 by the learned Additional Sub Judge, in C.M.A. Nos.36 and 37 of 2009 to the extent that learned Sub Judge allowed I.A. No.1755 of 2009 in O.S. No.705 of 2009. Respondent filed the suit for a decree for prohibitory injunction and other reliefs claiming that plaint B schedule is the only means of access to his property. Plaint A schedule belonged to the respondent. Leaned Munsiff found against existence of a way pleaded by the respondent. Leaned Munsiff observed that though as per version of respondent disputed way is in existence from 1982 onwards, Ext.P4 which is the copy of partition deed executed later made no mention of that way. Respondent challenged that order as well as the order of prohibitory injunction in the appeal. Learned Sub Judge found that there is prima facie evidence to show existence of the way and allowed both the applications and as per the judgment in the appeal petitioner was directed to O.P(C) No.2354 of 2011 -: 2 :- remove the obstruction from plaint B schedule. That judgment is under challenge. Leaned counsel for petitioner contended that existence of disputed way is not established and in view of that learned Sub Judge was not correct in upsetting the order of learned Munsiff on I.A. No.1755 of 2009. In this proceeding also it is pointed out that though the disputed way is said to be created in the year 1982, Ext.P4, copy of partition deed did not mention about the way. 2. True, that the said partition deed did not mention about the way. But the Advocate Commissioner in Exts.C1 and C1 (a), report and plan stated about the existence of the disputed way though its width did not tally with the width stated by the respondent in the plaint schedule. Commissioner also found a gate on the northern side of plaint A schedule (belonging to the respondent) and leading to the disputed way. The further finding made by the Commissioner is that except the disputed way there was no other way to the plaint A schedule. These circumstances are taken into account by the learned Sub Judge to hold that existence of way is prima facie revealed from the materials on record and therefore obstruction caused to the disputed way has to be removed. It is accordingly that the application was O.P(C) No.2354 of 2011 -: 3 :- allowed. Having heard counsel and gone through the records I do not find reason to interfere with the discretionary jurisdiction exercised by the leaned Sub Judge having regard to the circumstances of the case. Resultantly, Original Petition fails and is dismissed. THOMAS P. JOSEPH, JUDGE. vsv