IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 OP(C).No. 2954 of 2011(O) ------------------------- CMA.5& 6 of 2010 of DISTRICT COURT,THODUPUZHA IA NOS.105 & 193 OF 2009 IN OS.10/2009 of SUB COURT,KATTAPPANA .................... PETITIONER (S): ------------------------------- 1. ANTHRAYOS @ THANKACHAN, AGED 52 YEARS, S/O.THOMAS, PALAKKAVAYAL HOUSE, ASOKAVANAM, MAVADY KARA, PARATHODU VILLAGE, UDUMBANCHOLA TALUK. 2. V.T.ABRAHAM, AGED 57 YEARS, S/O.THOMAS, VAYALIL HOUSE, ASOKAVANAM, MAVADY KARA, PARATHODU VILLAGE, UDUMBANCHOLA TALUK. 3. REGI, AGED 35 YEARS, W/O.SAJEEVAN, KANJIRATHUMKAL (H), ASOKAVANAM, MAVADY KARA, PARATHODU VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.SAJI MATHEW SRI.DENU JOSEPH SRI.ANTONY XAVIER RESPONDENT(S): --------------- SOSAMMA MATHAN, KALLOOPPARAMBIL HOUSE, EDAN VALLEY ESTATE ASOKAVANAM, MAVADY KARA, PARATHODU VILLAGE, UDUMBANCHOLA TALUK-685003. BY ADV.SHRI SATHISH NINAN SHRI SANTHOSH MATHEW SHRI ARUN THOMAS JENNIS STEPHEN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.2954/2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- TRUE COPY OF THE COMMON ORDER IN IA NO.105/2009 AND IA 193/2009 IN OS 10/2009 OF SUB COURT, KATTAPPANA DATED 28.8.2009. EXHIBIT P2- TRUE COPY OF THE COMMON JUDGEMENT 23.2.2011 IN CMA NO.5/2010 & 6/2010 PASSED BY THE DISTRICT COURT, THODUPUZHA. EXHIBIT P3- TRUE COPY OF THE PLAINT IN OS NO.10/2009 ON THE FILE OF SUB COURT, KATTAPPANA. EXHIBIT P4- COMMISSION REPORT ALONG WITH ROUGH SKETCH DATED 31.01.2009 IN IA NO.106/2010 IN OS NO.10/2009 SUB COURT, KATTAPPANA. EXHIBIT P5- TRUE COPY OF THE IA NO.193/2009 IN OS 10/09 FILED BY THE RESPONDENT. EXHIBIT P6- TRUE COPY OF THE JUDGEMENT IN OS NO.15/09 PASSED BY THE SUB COURT, KATTAPPANA DATED 11.2.2011. EXHIBIT P7- TRUE COPY OF THE PLAINT OF OS NO.71/96 OF SUB COURT, KATTAPPANA. EXHIBIT P8- TRUE COPY OF THE JUDGEMENT PASSED BY THE SUB COURT, KATTAPPANA IN OS 71/96 DATED 29.3.2011. EXHIBIT P9- TRUE COPY OF THE COMPROMISE DECREE IN OS 71/96 OF SUB COURT, KATTAPP DATED 29.3.1997. EXHIBIT P10- TRUE COPY OF THE ROAD REGISTER OF UDUMBANCHOLA GRAMA PANCHAYAT OF THE YEAR 2002. EXHIBIT P11- TRUE COPY OF THE COMMISSION REPORT IN OS NO.5/2009 OF MUNSIFF COURT, KATTAPPANA ALONG WITH ROUGH SKETCH DATED 16.1.2009. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2954 of 2011 -------------------------------------- Dated this the 20th day of September, 2011. JUDGMENT This Original Petition is in challenge of common judgment of the learned District Judge, Thodupuzha in C.M.A.Nos.5 and 6 of 2010 reversing the common order passed by learned Sub Judge, Kattappana on I.A.Nos.105 and 193 of 2009 (in O.S.No.10 of 2009). Petitioners sued respondent for a declaration that the suit property is a public road and for prohibitory injunction against respondent putting up a gate or causing obstruction to the free passage of petitioners through the said road. According to the petitioners, the said road is a public road as found by the learned Sub Judge, Kattappana in O.S.No.15 of 2009. Respondent contended that the disputed way is a private road as held by the learned Sub Judge, Kattappana in a still earlier proceeding – O.S.No.71 of 1996 and the compromise judgment and decree therein. Learned District Judge while reversing the common order passed by the learned Sub Judge has permitted the respondent put up a gate at the entrance of the disputed road but, without causing hindrance to the pedestrians walking though the said road. Petitioners were prevented from taking vehicles through the said road. Trial court was directed to expedite disposal of the suit. OP(C) No.2954/2011 2 2. Though various contentions are raised by petitioners in this proceeding when the matter came up for admission learned counsel for petitioners submitted that the suit itself is coming up for trial immediately and in the circumstance petitioners may be permitted to withdraw this petition without prejudice to their right to raise all contentions before the learned Sub Judge. It is also prayed that learned Sub Judge may be directed to dispose of the suit untrammelled by any observations/findings in the common judgment in C.M.A.Nos.5 and 6 of 2010 or the disposal of this Original Petition. Having heard learned counsel for petitioners and respondent I am inclined to allow the request. Resultantly this Original Petition is dismissed as withdrawn without prejudice to the right of petitioners to raise all their contentions before the trial court. Learned Sub Judge, Kattappana is directed to dispose of the suit (O.S.No.10 of 2009) on merit untrammelled by the observations/findings in the common judgment of learned District Judge, Thodupuzha in C.M.A.Nos.5 and 6 of 2010 or the dismissal of this Original Petition as withdrawn. THOMAS P.JOSEPH, Judge. cks