IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).NO. 20837 OF 2010(O) ------------------------------------------ OS.561/2008 OF PRL.MUNSIFF COURT,NEDUMANGAD PETITIONER(S): --------------------- 1. R.LEELA AMMA, W/O.E.C.SEKHARAN, SREE BHAVAN, KULATHUMMAL AMSOM, KOLLODE DESOM, THIRUVANANTHAPURAM. 2. PRABHAKARAN NAIR, S/O.NARAYANA PILLAI, SREE BHAVAN, KULATHUMMAL AMSOM, KOLLODE DESOM, THIRUVANANTHAPURAM. 3. SUNILKUMAR, S/O.PRABHAKARAN NAIR, SREE BHAVAN, KULATHUMMAL AMSOM, KOLLODE DESOM, THIRUVANANTHAPURAM. 4. SREELEKHA, SREE BHAVAN, KULATHUMMAL AMSOM, KOLLODE DESOM, THIRUVANANTHAPURAM. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD RESPONDENT(S): ----------------------- 1. LAKSHMIKUTTY AMMA, W/O.A.K.NARAYANANKUTTY, LAKSHMI VILASOM BUNGLOW, KULATHUMMAL AMSOM, KOLLODE DESOM, THIRUVANANTHAPURAM. 2. RIJUKUMAR, S/O.PRABHAKARAN NAIR, S/O.NARAYANA PILLAI, SREE BHAVAN, KULATHUMMAL AMSOM, KOLLODE DESOM, THIRUVANANTHAPURAM. ADV. SMT.T.D.RAJALAKSHMI FOR R1 SRI.R.SREEHARI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S. NO.561 OF 2008 ON THE FILE OF THE MUNSIFF COURT, NEDUMANGAD, DATED 12.2008. EXHIBIT P2 A TRUE COPY OF THE I.A. NO.2936 OF 2008 IN O.S. NO.561 OF 2008 DATED 12.8.2008. EXHIBIT P3 A TRUE COPY OF THE OBJECTIONS FILED BY THE DEFENDANTS TO EXT.P2 INJUNCTION APPLICATION DATED 29.8.2008. EXHIBIT P4 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S. NO.561 OF 2008 DATED 25.12.2008. EXHIBIT P5 A TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 13.8.2008 IN O.S. NO.561 OF 2008. EXHIBIT P6 A TRUE COPY OF I.A. NO.3181 OF 2008 IN O.S. NO.561 OF 2008 DATED 3.9.2008. EXHIBIT P7 A TRUE COPY OF THE OBJECTION FILED BY THE DEFENDANTS TO I.A. NO.3181 OF 2008 DATED 24.11.2008. EXHIBIT P8 A TRUE COPY OF THE PLAINT IN O.S. NO.671 OF 2008 OF THE MUNSIFF COURT, NEDUMANGAD DATED 16.9.2008. EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 27.11.2008 IN I.A. NO.3181 OF 2008 IN O.S. NO.561 OF 2008. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 7.4.2008 IN C.M.A. NO.24 OF 2008 OF THE SUB COURT, NEDUMANGAD. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) NO.20837 of 2010 ==================================== Dated this the 13th day of August, 2010 J U D G M E N T Defendant No.1 and additional defendant Nos.3, 5 and 6 in O.S. No.561 of 2008 of the court of learned Munsiff, Nedumangad challenged Ext.P9, order on I.A.No.3181 of 2008 as confirmed by the learned Sub Judge, Nedumangad by Ext.P10, judgment in C.M.A. No.24 of 2008. That is a suit filed by respondent No.1 against petitioner No.1 and respondent No.2 seeking a declaration of right of easement by way of prescription over C schedule way running through plaint B schedule which belonged to petitioner No.1. Respondent No.1 also prayed for mandatory injunction against petitioners and respondent No.2 to restore plaint C schedule to its original position. Petitioners denied existence of any pathway as C schedule and claimed that respondent No.1 is gaining access to their property through other pathways referred to in the written statement. Learned Munsiff vide order on I.A. No.2936 of 2008 granted an interim order of prohibitory injunction against petitioners and respondent No.2. Respondent No.1 filed I.A.No.3181 of 2008 for an order of mandatory injunction to direct petitioners to remove the obstructions caused on C schedule as according to respondent No.1 after institution of the suit and in W.P(C) No.20837 of 2010 -: 2 :- violation of the order of injunction respondent No.2 and petitioners caused obstruction on the way. Petitioners opposed that application claiming that no such obstruction was caused and at any rate alleged obstruction was in existence even before institution of the suit. That application has resulted in Ext.P9, order by which learned Munsiff directed petitioners and respondent No.2 to remove the obstruction from plaint C schedule. Learned Sub Judge has confirmed Ext.P9, order vide Ext.P10, judgment. Learned counsel for petitioners contends that I.A. No.3181 of 2008 was not maintainable in so far as even as per averments in the plaint and the relief sought, alleged obstruction was before institution of the suit and hence Ext.P9, order amounted to granting a decree in part before the suit is taken up for trial. Learned counsel also has a contention that respondent No.1 is not entitled to any right of easement by way of prescription. It is pointed out that respondent No.2 has filed O.S. No. No.671 of 2008 against respondent No.1 seeking injunction against closing or obstructing alternative pathway which according to petitioners and respondent No.2 is being used by respondent No.1 and an interim order of injunction was passed on I.A. No.3285 of 2008 which is in force even now. Learned counsel states that since Ext.P9, order amounts to decreeing the suit in part it is only appropriate that W.P(C) No.20837 of 2010 -: 3 :- directing the parties to maintain the present condition learned Munsiff is directed to dispose of the suit as early as possible if necessary within a time limit to be ordered by this Court. Learned counsel undertakes on behalf of petitioners and respondent No.2-additional defendant No.4 on whose behalf also this Writ Petition is filed that in case O.S. No.561 of 2008 is decreed in favour of respondent No.1, petitioners and respondent No.2 shall restore plaint C schedule to its original position without waiting for the result of appeal from the judgment and decree. It is also undertaken by learned counsel that in case any such appeal is preferred by petitioners or respondent No.2, they will not seek any stay of execution of the decree and Ext.P9, order relating to restoration of C schedule. Learned counsel for respondent No.1 is agreeable to that course provided a time limit is made for disposal of the suits. Learned counsel for respondent No.1 contends that there is no reason to interfere with Ext.P10, judgment confirming Ext.P9. It is also contended by learned counsel that report of Advocate Commissioner (in O.S. No.561 of 2008) would show that building in plaint A schedule was being used for serial shooting often and respondent No.1 was gaining profit out of the same. On account of act of petitioners and respondent No.2 vehicular access is not possible to plaint A schedule thus preventing vehicles to be taken to A W.P(C) No.20837 of 2010 -: 4 :- schedule. Learned counsel also referred to me to the report of Advocate Commissioner in O.S. No.671 of 2008 where width of the alternative way stated by the Advocate Commissioner is a maximum of 2 metres as regards one of the alternative ways and as regards the other way, the width is only 6-7 feet with several steps on the said way. According to the learned counsel both those alternative ways are not motorable. 2. In so far as learned counsel for petitioners has made an undertaking which I have stated above to which learned counsel for respondent No.1 is also agreeable I do not consider it necessary to go into the contentious issues raised in this Writ Petition. Those issues shall be decided by court after trial of the suit. In the light of the circumstances stated and the undertaking made by petitioners I am persuaded to think that parties can be directed to maintain the present condition of plaint C schedule until disposal of O.S.No.561 of 2008. Resultantly, this Writ Petition is disposed of in the following lines: (i) Parties hereto are directed to maintain condition of plaint C schedule as reported by the Advocate Commissioner in Ext.P5, report appended to W.P(C) No.20837 of 2010 -: 5 :- this Writ Petition. (ii) In case O.S. No.561 of 2008 is disposed of in favour of respondent No.1 and there is a direction to the petitioners to restore C schedule way in any manner trial court directs petitioners and respondent No.2 shall within one month from the date of judgment and decree of trial court and without waiting for result of appeal that petitioners and respondent No.2 may prefer, restore plaint C schedule pathway as directed by the trial court. (iii) In case petitioners and respondent No.2 do not do so it will be open to respondent No.1 to execute this order and restore plaint C schedule to its original position and realise its expenses from petitioners and respondent No.2. (iv) Trial court is directed to dispose of the suits as expeditiously as possible and at any rate within three months from the date of receipt of a copy of this judgment. THOMAS P. JOSEPH, JUDGE. vsv