IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 22170 of 2010(O) -------------------------- OS.207/2008 of MUNSIFF COURT,HARIPAD .................... PETITIONERS: --------------- 1. JAYANTHAN S/O.MADHAVAN, ANEESH BHAVANAM, THAMALLAKEL VADEKKUM MURI, KUMARAPURAM VILLAGE, THAMALLAKEL PO, ALAPPUZHA DISTRICT. 2. VIMALA W/O.JAYANTHAN -DO- -DO- BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENTS: --------------- 1. RAMACHANDRAN,S/O.PARAMESWARAN, KOTTINATTU VEETTIL, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE, THAMALLAKEL PO, ALAPPUZHA DISTRICT-690 549. 2. RAJESH, ANEESH BHAVANAM, THAMALLACKAL VADAKKUM MURI, KUMARAPURAM VILLAGE, THAMALLAKEL PO, ALAPPUZHA DISTRICT-690 549. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2010, ALONG WITH W.P.C.No.22138 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.Nos.22138 and 22170 of 2010 --------------------------------------- Dated this 19th day of July, 2010 JUDGMENT These writ petitions arise from common judgment of learned Additional District Judge-II, Mavelikkara in C.M.A.Nos.50, 51 and 52 of 2008, respectively which arose from the order of prohibitory and mandatory injunction passed by the learned Munsiff, Haripad in O.S.Nos.207 and 221 of 2008, respectively. Parties are referred to as petitioners and respondent for the sake of convenience. 2. Respondent filed O.S.No.207 of 2008 for declaration of right of easement by way of necessity and for prohibitory injunction. Petitioners countered that suit by filing O.S.No.221 of 2008. Property of respondent/defendant (in O.S.No.221 of 2008) is situated on the south of Chempu Thodu. On the north of that Thodu there is a small strip of land. On its further north is the public road. Respondent claimed that the only means of access to his property on the south of the Chempu Thodu is through the wooden bridge across the said Thodu which has its terminal points on the south in his own property and on the north in the small strip of land lying between the Chempu Thodu and public W.P.C.Nos.22138 and 22170 of 2010 : 2 : road. He apprehended that petitioners might remove the bridge which would prevent him from gaining access to his property on the further south. Hence respondent filed O.S.No.207 of 2008 against petitioners and moved I.A.No.1182 of 2008 for an order of temporary injunction. Learned Munsiff granted an interim order of injunction on that application. Petitioners claimed that the small strip of land in between the Chempu Thodu and public road formed part of their property and that respondent is attempting to put up new bridge over the Thodu and to make use of the small strip of land belonging to petitioners. They filed O.S.No.221 of 2008 against respondent for decree for prohibitory injunction and moved I.A.No.1312 of 2008 for an order of temporary injunction. In the meantime Advocate Commissioner inspected the properties and submitted report. Later, respondent filed I.A.No.1344 of 2008 in O.S.No.207 of 2008 for an order of mandatory injunction alleging that under cover of institution of O.S.No.221 of 2008 petitioners removed the said bridge making it impossible for him to gain access to his property on the south of Chempu Thodu. Learned Munsiff considered the applications and dismissed I.A.No.1312 of 2008 while I.A.No.1182 of 2008 and 1344 of 2008 were allowed. Aggrieved, petitioners filed C.M.A.Nos.51 of 2008 challenging dismissal of I.A.No.1312 of W.P.C.Nos.22138 and 22170 of 2010 : 3 : 2008 and C.M.A.Nos.50 of 2008 and 52 of 2008 against allowing I.A.Nos.1182 of 2008 and 1344 of 2008 (in O.S.No.207 of 2008). Learned Additional District Judge-II, Mavelikkara found no reason to interfere with the common order passed by learned Munsiff and dismissed the C.M appeals. That common judgment is under challenge in these writ petitions. W.P.C.No.22138 of 2010 arises from judgment in C.M.A.No.51 of 2008 while W.P.C.No.22170 of 2010 arises from the judgment in C.M.A.Nos.50 and 52 of 2008. Learned counsel has referred me to the contentions raised by the parties and report of Advocate Commissioner to show that even before institution of O.S.No.221 of 2008, northern terminal of the wooden bridge was not touching the small strip of land over which petitioners claimed title and possession. It is also contended by learned counsel that in the way O.S.No.207 of 2008 is framed, respondents are not entitled to get a decree as prayed for and hence I.A.Nos.1182 of 2008 and 1344 of 2008 ought to have been dismissed. 3. Now what is required to be considered is whether interference is required with the finding of fact entered by the courts below in exercise of the this courts' supervisory jurisdiction under Article 227 of the Constitution. Unless the finding is illegal or perverse in that it is not supported by any W.P.C.Nos.22138 and 22170 of 2010 : 4 : material interference in exercise of that jurisdiction is not called for particularly as it is by way of interim measure that learned Munsiff has disposed of the applications. It is seen from the report of Advocate Commissioner in O.S.No.207 of 2008 (Ext.P8 in W.P.C.No.22170 of 2010) that at the time Advocate Commissioner inspected the property there was a wooden bridge which according to the Commissioner was the only means of access to the property of respondent. It is also seen that in the subsequent visit position of the wooden bridge was seen altered. It is considering these aspects that learned Munsiff allowed I.A.Nos.1182 of 2008 and 1344 of 2008. Learned Munsiff has referred to the reports of Advocate Commissioner in both the cases and noticed the change of situation of the wooden bridge after first inspection by the Commissioner. After considering these aspects and the report in O.S.No.207 of 2008 that only access for respondent is through the disputed wooden bridge learned Munsiff permitted respondent to restore the bridge to its original position making it clear that if it is ultimately found after taking evidence that respondent is not entitled to put up the bridge in that position he shall remove the bridge. Learned Munsiff has also observed that question whether the small strip of land between the Thodu and road on the north belonged to the W.P.C.Nos.22138 and 22170 of 2010 : 5 : petitioner is a matter which could be decided after recording evidence. I have gone through the records placed before me and heard learned counsel for petitioners. I do not find reason to interfere with the common order passed by the learned Munsiff as confirmed by the learned Additional District Judge. These writ petitions fail and are accordingly dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-