IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 23112 of 2008(B) -------------------------------------- PETITIONER(S): ---------------------- LAJI MATHEW, S/O.P.M.MATHEW, AGED 40, PULICHAL HOUSE, THATHAMPALLY, ALLEPPEY. BY ADV. MR.S.SREEKUMAR RESPONDENT(S): ------------------------ 1. P.M.JAMES, PULICKAL TRINITY VILLA, THATHAMPALLY P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. 3. TAHSILDAR, AMBALAPUZHA TALUK. 4. THE VILLAGE OFFICER, MULLACKAL VILLAGE. R2 TO R4 BY GOVERNMENT PLEADER SMT.N.SUDHADEVI R1 BY MR.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE, ADV. MR.TONY GEORGE KANNANTHANAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 23112/2008-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.8 OF 2007. EXT.P2: COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.390 OF 2007 FILED BY 4TH DEFENDANT. EXT.P3: COPY OF THE JUDGMENT IN O.S. NO.742/92 DATED 31/08/1994 OF MUNSIFF'S COURT ALAPPUZHA. EXT.P4: COPY OF THE PLAINT IN O.S. NO.318 OF 2006 OF MUNSIFF COURT, ALLEPPEY. EXT.P5: COPY OF THE ORDER CMP NO.231 OF 2006 FILED BY THE PLAINTIF. EXT.P6: COPY OF THE ORDER IN IA NO.39 OF 2007 IN O.S. NO.8 OF 2007 DATED 10/09/2007. EXT.P7: COPY OF THE ORDER IN CMA NO.18 OF 2007 DATED 11/06/2008 PASSED BY THE SUB COURT, ALAPPUZHA. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).23112/2008 -------------------- Dated this the 31st day of March, 2009 JUDGMENT Fourth defendant in O.S.8/2007 of the Munsiff's Court, Alappuzha is the petitioner in this writ petition, wherein a challenge has been mounted to Ext.P7 order passed by the Sub Court, Alappuzha in C.M.A.18/2007. The Suit in O.S.8/2007, Ext.P1 being the plaint therein, is one instituted by the first respondent herein seeking an injunction restraining defendants 1 to 3 from effecting transfer of the plaint scheduled property under the Transfer of Registry Rules, by giving a wrong description and wrong survey number. An application for temporary injunction for a similar relief was filed as I.A.39/2007. Learned Munsiff dismissed the application for injunction. Plaintiff preferred an appeal. This resulted in Ext.P7 order which, as stated above, has been challenged in this writ petition. It is the contention of the writ petitioner that an injunction ought not to have W.P.(C).23112/2008 2 been granted against defendants 1 to 3 for effecting transfer of the registry of plaint schedule property in wrong survey number and wrong description. I take note of the fact that the appellate Court has noted pendency of O.S.318/2006 for a declaratory relief. The main dispute among the parties relates to the existence of a pathway in the plaint schedule property, as claimed by the plaintiff and also as regards the width of the said pathway. According to the plaintiff, the pathway should have a width of at least 15 feet. The lower appellate Court took note of the fact that the 4th defendant had not produced the prior documents of title which would have gone a long way to show the width of the pathway. At any rate, the question as to whether the plaintiff is entitled to right of way is a triable issue and in such circumstances, a further alienation of the property or a transfer of registry in relation to the said property, according to the lower appellate Court, should be avoided. W.P.(C).23112/2008 3 2. The view taken by the lower Appellate Court is a plausible view. Prima facie I also take note of the fact that the order of injunction primarily operates against defendants 1 to 3. 3. Learned counsel for the respondents submits that the present suit along with O.S.No.318/2006 had already been listed for trail. In such circumstances, I do not think there is either any warrant or justification for interfering with Ext.P7. In the result, writ petition is dismissed. I make it clear that the trial Court shall proceed to dispose of the Suits, as already directed in Ext.P7 order, completely untrammeled by any observations made either in Ext.P6 or in Ext.P7, or in this judgment. V.GIRI, Judge mrcs