IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 WP(C).No. 15005 of 2008(J) -------------------------- CMA.41/2007 of ADDL.DISTRICT COURT, THRISSUR OS.204/2007 of I ADDL.SUB COURT, THRISSUR .................... PETITIONERS: ------------ 1. SUDHEERKUMAR, S/O.SURENDRAN MARATH HOUSE, EDAMUTTAM P.O VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. SUDHEESHKUMAR, S/O.SURENDRAN, -DO- -DO- BY ADV. SRI.K.S.BHARATHAN RESPONDENTS: ------------- 1. EASWARI AMMA, D/O.LAKSHMI AMMA & W/O.RAVUNNI NAIR, MUNDENCHERRY HOUSE, EDAMUTTAM POST, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. VINOBAN.M., ADVOCATE, S/O.MUNDENCHERRY EASWARI AMMA, -DO- DO 3. SUNILKUMAR, S/O.SURENDRAN, MARATH HOUSE, EDAMUTTAM P.O. VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, NOW RESIDING AT P.B.NO.19/72, DOHA, QATAR. 4. SEEBA SUNILKUMAR, W/O.SUNILKUMAR, -DO- -DO- BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.15005 of 2008 ------------------------------- Dated this the 22nd May, 2008. J U D G M E N T Petitioners are defendants 3 and 4 in O.S.No.204/2007, on the file of First Additional Sub Court, Thrissur. Respondents 1 and 2 are the plaintiffs. They filed the suit seeking a decree for declaration of their right of way in the disputed portion through plaint 'B' schedule property. It was contended by respondents 1 and 2 that before institution of the suit, petitioners tampered plaint 'B' schedule way by erecting concrete pillars and planting coconut saplings. I.A.No.1379/07 was filed by respondents herein, for temporary injunction directing petitioners to remove the obstruction caused. Petitioners resisted the petition contending that respondents 1 and 2 have no right of way through plaint 'B' schedule property and they did not prescribe any way through their property, and therefore, petition is only to be dismissed. 2. The learned Munsiff under Ext.P5 order found that concrete pillars and coconut saplings were recently planted and in view of the decision of this Court reported in Appukuttan Nair v. Hydrose W.P.(C) No.15005/2008 2 (2004 (1) KLT 350), and the decision of the Apex Court in Dorab Cawasji Warden v. Coomi Sorab Warden and others (AIR 1990 SC 867), Court has power to pass interim mandatory injunction to restore status quo of the last non contested status which proceeded the pending controversy. It was therefore found that petitioners are bound to remove the obstruction caused. They were directed to remove the concrete posts and coconut saplings from the plaint 'B' schedule property. Petitioners challenged that order before District Court, Thrissur, in C.M.A.No. 41/2007. Under Ext.P9 order, learned District Judge confirmed the order and dismissed the appeal. The same is challenged in this petition filed under Article 227 of the Constitution of India. 3. The argument of the learned counsel appearing for the petitioners is that plaint 'B' schedule property which admittedly belongs to the petitioners even according to respondents 1 and 2, was a paddy field, and though in the plaint it was claimed that, the ridge was subsequently widened to a road, and they have prescribed a right of way over the entire plaint 'B' schedule property, there is no prima facie evidence to prove existence of plaint 'B' schedule way or a right of easement by prescription, and courts below should not have granted an interim mandatory injunction for restoration of the way W.P.(C) No.15005/2008 3 which was not in existence at all. 4. On hearing the learned counsel and on going through Exts.P5 and P9 orders, Ext.P3 report submitted by the Advocate Commissioner and Ext.P4 objection filed by petitioners, it is clear that plaint 'B' schedule way was in existence before it was tampered by putting up concrete pillars and planting coconut saplings. The learned counsel for the petitioners submitted that second respondent is a practicing Advocate and petitioners have serious objections against Ext.P3 report submitted by the Commissioner, and in such circumstances, courts below should not have accepted Ext.P3 report to grant the interim relief. On going through the orders of the courts below, I find no reason to invoke the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India, to interfere with Exts.P5 and P9 orders. At the same time, it is made clear that learned Munsiff has to dispose the suit untrammelled by any observations in Exts.P5 and P9 orders, as well as in this judgment. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.