IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 FAO.No. 363 of 2007() ---------------------------------- AGAINST THE ORDER DATED 10/04/2007 IN IA.650/2006 IN AS.116/2006 of SUB COURT, NEDUMANGAD .................... APPELLANTS (S): -------------------- AMBIKA, D/O.KARTHIYAYANI AMMA, AMBIKALAYAM, THRIPPADAM,CHELLAMCODE, NEDUMANGAD VILLAGE. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENT(S): -------------------------- 1. KUMARI DEVI, D/O.CHELLAPPAN PILLAI, DEVA VILASOM VEEDU, CHELLAMCODE MURI, NEDUMANGAD VILLAGE. 2. MADHU, S/O.KESAVA PILLAI, DEVA VILASOM VEEDU, CHELLAMCODE MURI, NEDUMANGAD VILLAGE. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- F.A.O. No. 363 OF 2007 --------------------------------- Dated this the 21st day of November, 2008 JUDGMENT This appeal is preferred against the order of the Subordinate Judge, Nedumangad in I.A. 650/06 in A.S. 116/06. The said application was filed by the defendants in the suit for an injunction to restrain the plaintiff in the suit from closing the 'C' schedule pathway or making any obstruction therein affecting their ingress and egress to the 'A' schedule property. After hearing both sides, the appellate court has granted a temporary injunction from closing 'C' schedule pathway or making any obstruction. It is aggrieved by that decision the plaintiff has come up in this appeal. 2. It has to be remembered, that the suit has been filed by the plaintiff for injunction and defendants filed a counter claim for declaration of a pathway in the suit. The trial court after considering the materials available before it granted an order of injunction in favour of the plaintiff and dismissed the counter claim on the ground that they have not established that there was a pathway over which they have prescribed easement right by prescription. I do not want to go into the details of the matter. The F.A.O. No. 363/2007 -2- observations made by the learned Subordinate Judge appears to be that the pathway is there and the age of the pathway is not substantiated and therefore easement is denied by the trial court. It is a subject matter which requires consideration by the appellate court. What ever it may be, the appeal has to be considered independently on the facts and materials available and on the basis of the law, when it comes up for hearing. I do not want to interfere with the decision at this stage. But the plaintiff is a person who is armed with a decree in his favour where as the defendants is a person who had lost the case in the trial court. So really there is some grievance for the plaintiff. So the best method is to direct the appellate court to dispose of the appeal within a time limit of three months from today. Therefore I dismiss the F.A.O with the observation that the appellate court shall dispose of the appeal itself within a period of three months from today. I also make it clear that if the plaintiff wants any interim order with respect to any waste or damages in the property, he may move to court below for appropriate orders till a final decision is taken in the matter. I also make it clear that the appellate court has to dispose of the matter untramelled by the F.A.O. No. 363/2007 -3- observation made by it in the order which is challenged before this court. The Registry is directed to send a copy of the judgment to the appellate court for information and compliance. M.N. KRISHNAN,JUDGE vkm