IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 24516 of 2008(R) --------------------------------------- CMA.58/2008 of DISTRICT COURT, TRIVANDRUM .................... PETITIONER(S): ----------------------- J.R. LEELABAI, D/O.JESSY, RESIDING AT TC.25/1115(1), EAST THAMPANOOR PO., THIRUVANANTHAPURAM. BY ADV. MR.R.S.KALKURA RESPONDENT(S): ------------------------ 1. J.R. VASANTHAKUMAR, RESIDING AT TC.25/1116(B) EAST THAMPANOOR, THAMPANOOR PO. THIRUVANANTHAPURAM. 2. VIJAYAKUMARI, W/O.J.R. VASANTHAKUMAR, RESIDING AT 25/1116(B) EAST THAMPANOOR, THAMPANOOR P.O., THIRUVANANTHAPURAM. 3. VINU RAJ.V.V., S/O.J.R.VASANTHAKUMAR, RESIDING AT T.C.25/1116(B) EAST THAMPANOOR, THAMPANOOR P.O., THIRUVANANTHAPURAM.. R1 & R2 BY ADV. MR.RAM MOHAN.G., MR.G.P.SHINOD, MR.MANU V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24516/2008-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DOCUMENT NO.1602/1991 DATED 20/05/1991 OF SUB REGISTRY OFFICE, CHALAI. EXT.P2: COPY OF THE DOCUMENT NO.777/89 DATED 06/07/1989 OF SUB REGISTRY OFFICE, CHALAI. EXT.P3: COPY OF THE DOCUMENT NO.63/06 DATED 05/01/2006 OF SUB REGISTRY OFFICE CHALAI. EXT.P4: COPY OF THE TAX RECEIPT NO.0618658 DATED 02/08/2007. EXT.P5: COPY OF THE TAX RECEIPT NO.0608660 DATED 02/08/2007. EXT.P6: COPY OF THE TAX RECEIPT NO.0618659 DATED 02/08/2007. EXT.P7: COPY OF THE SALE DEED NO.3261/2007 DATED 03/08/2007. EXT.P8: COPY OF THE PLAINT IN OS NO.366/2008 ON THE FILE OF THE IIND ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM. EXT.P9: COPY OF THE I.A. FOR INJUNCTION IN OS NO.366/2008. EXT.P10: COPY OF THE COUNTER AFFIDAVIT IN OS NO.366/2008. EXT.P11: COPY OF THE COMMISSION REPORT ALONG WITH ROUGH PLAN IN OS NO.366/2008. EXT.P12: COPY OF THE DOCUMENT NO.388/1986 DATED 13/02/1986. EXT.P13: COPY OF THE ORDER DATED 10/04/2008 IN I.A. NO.1808/2008 IN OS NO.366/2008. EXT.P14: O.P. NO. MEMORANDUM OF APPEAL IN CMA NO.58/2008 ON THE FILE OF THE DISTRICT COURT, TRIVANDRUM. EXT.P15: COPY OF THE JUDGMENT DATED 25/06/2008 IN CMA NO.58/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 24516 OF 2008 = = = = = = = = = = = = = == = = = = = = = Dated this the 10th day of December 2009. JUDGMENT This writ petition is filed by the petitioner seeking the following reliefs. i) Issue a writ of Certiorari or any other appropriate writ, order or direction of the nature of Certiorari quashing or setting aside Exhibit P15 order dated 25.06.2008 in C.M.A.No.58/2008 on the file of the II Additional District Court, Trivandrum. ii) Grant such other reliefs which are appropriate and incidental to this proceeding and which this Hon'ble Court may deem fit and proper. 2. Petitioner in this writ petition is the plaintiff in O.S.No.366 of 2008 on the file of the II Additional Munsiff's Court, Trivandrum. The suit is for perpetual prohibitory injunction and the respondents are the defendants. The dispute involved related to a pathway described as 'B' Schedule over which the plaintiff claimed exclusive rights. A decree of injunction is sought for to restrain the defendants from trespassing on that pathway. With the suit, the plaintiff moved W.P.(C). No. 24516 OF 2008 2 an application for interim relief identical to the main relief sought for till its disposal. The learned Munsiff, after hearing both sides allowed that application restraining the defendants from trespassing upon the 'B' Schedule pathway and committing any waste therein. Ext.P15 is copy of the order. In appeal preferred by the defendants against Ext.P13 order, the learned Additional District Judge modified that order limiting the injunction only in respect of committing waste. Ext.P15 is the copy of that judgment. By Ext.P15 judgment, the defendants are also allowed to make use of 'B' Schedule pathway but without committing any waste. Propriety and correctness of Ext.P15 judgment modifying Ext.P13 order of the learned Munsiff is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Pursuant to Ext.P13 order passed by the learned Munsiff and Ext.P15 judgment of the learned District Judge with reference to the submissions made by the counsel on both sides and also other exhibits tendered with W.P.(C). No. 24516 OF 2008 3 the writ petition, I find no interference with Ext.P15 judgment is warranted and what is required is only a speedy disposal of the suit giving a quietus to the whole controversy. Both sides submit that the suit is now ripe for trial. Whereas the plaintiff is having a case that 'B' Schedule is private way exclusively belonging to her, the defendants contend that there is already a dedication of that way to the Corporation and it is maintained by that authority. So the real question to be involved in the suit is whether it is a private way exclusively belonging to the plaintiff or the defendants have some rights over that pathway whether or not it has been dedicated to the Corporation. The learned counsel for the plaintiff submits that the defendants have also canvassed a right of prescriptive easement over the pathway militating against the case that there is a dedication to the public vesting the way with the Corporation. Whatever that be, the disputed questions involved require to be adjudicated in the suit after affording opportunity to both sides to lead evidence in support of their respective case. The learned Munsiff is directed to dispose the suit as expeditiously as possible, untrammeled by W.P.(C). No. 24516 OF 2008 4 any of the observations made in its Ext.P13 order and Ext.P15 judgment of the learned District Judge, at any rate, within a period of six months from the date of receipt / production of a copy of this judgment. The writ petition is disposed of as above. S.S.SATHEESACHANDRAN JUDGE kkms/