IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 27084 of 2009(O) -------------------------- AGAINST THE ORDER DATED 16/03/2009 IN IA 569/09 IN OS.185/2004 of MUNSIFF COURT, PARAVUR .................... PETITIONER: --------------- SIVARAMAN NAIR, AGED 57 YEARS, S/O. KRISHNAN NAIR, PANAPPALLIL HOUSE, WEST KODUNGALLOOR P.O., ALUVA. BY ADV. MR.BABU KARUKAPADATH MS.M.A.VAHEEDA BABU MR.JAGAN GEORGE MR.K.A.NOUSHAD MR.P.G.PRAMOD RESPONDENT: --------------- PADMINI, AGED 63 YEARS, W/O. VASUDEVAN PILLAI, "JYOTHIS", THOTTUMUGHAM KARA, THOTTUMUGHAM P.O., ALUVA EAST VILLAGE, ALUVA TALUK. ADV. MR.S.B.PREMACHANDRA PRABHU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27084 of 2009(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PLAINT IN O.S.NO.185/2004 ON THE FILE OF THE MUNSIFF COURT, NORTH PARAVUR. EXT.P2: WRITTEN STATEMENT FILED BY THE PETITIONER/DEFENDANT IN O.S.NO.185/2004 ON THE FILE OF THE MUNSIFF COURT, NORTH PARAVUR. EXT.P3: JUDGMENT DATED 25.6.2007 IN W.P.(C).NO.16535/2007 OF THIS HON'BLE COURT. EXT.P4: ORDER DATED 2.8.2008 IN O.S.NO.185/2004 ON THE FILE OF THE MUNSIFF COURT, NORTH PARAVUR. EXT.P5: REPORT DATED 22.1.2009 IN O.S.NO.185/2004 ON THE FILE OF THE MUNSIFF COURT, NORTH PARAVUR. EXT.P6: I.A.NO.569/2009 IN O.S.NO.185/2004. EXT.P7: COUNTER AFFIDAVIT IN I.A.NO.569/2009. EXT.P8: ORDER DATED 16.3.2009 IN I.A.NO.569/2009 IN O.S.NO.185/2004 OF THE MUNSIFF COURT, NORTH PARAVUR. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.27084 Of 2009 ---------------------- Dated this the 12th day of October, 2010. J U D G M E N T The defendant in O.S.No.185 of 2004 on the file of the Munsiff Court, North Paravur is the petitioner. The plaintiff filed the suit for declaration of right of easement by necessity over plaint B schedule pathway and for consequential injunction. In the suit, the commissioner filed the report after measurement and demarcation of the plaint schedule properties. Later, the plaintiff filed I.A.No.569 of 2009. The prayer in the I.A is to withdraw the suit with liberty to file a fresh suit with regard to the same subject matter. The application was seriously opposed by the defendant who is the petitioner herein. The reason for filing the application is that upon measurement it was revealed that the plaint B schedule pathway forms part of plaintiff's own property and therefore he cannot claim easement by necessity through her own property. For the said reason the court allowed the application and the plaintiff is permitted to withdraw the suit with liberty to institute a fresh suit on condition that the plaintiff shall pay Rs.750/- to the defendant. Ext.P8 is the order passed by the court. Ext.P8 order is under challenge. 2. Suit was filed claiming easement right by prescription over plaint B schedule pathway. On measurement the W.P.(C).No.27084 Of 2009 ::2:: commissioner reported that plaint B schedule pathway is comprised in survey No.352/1. The plaintiff's property is also comprised in the same survey number. On the basis of the commissioner's report the plaintiff submitted that plaint B schedule pathway form part of her own property and therefore she cannot claim easement by prescription through her own property. In the circumstances, she applied for withdrawal of the suit with liberty to file a fresh suit. The question as to whether the plaintiff has got title over plaint B schedule pathway is not a question to be decided in this proceedings. The court accepted the reason stated by the plaintiff for withdrawing the suit. It is the plaintiff's case that she has got title over the property in dispute. The reason stated by the plaintiff for seeking permission of the court to withdraw the suit with liberty to institute a fresh suit is accepted by the court below. I do not find any reason to interfere with the order passed by the court below which is justified in all respects. Writ petition fails and accordingly, dismissed. HARUN-UL-RASHID, Judge. bkn/-