IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 OP(C).NO. 432 OF 2010(O) -------------------------------------- CMA.55/2009 OF DISTRICT COURT, PATHANAMTHITTA OS.222/2009 OF M.C.,PATHANAMTHITTA .................... PETITIONER: -------------------- KUNJAMMA TITUS W/O.LATE TITUS PUTHUPARAMBIL THEKKETHIL HOUSE,MALASSERI, PRAMADOM, KOZHENCHERRY. BY ADV. SRI.R.KRISHNA RAJ RESPONDENT(S): ------------------------- SHIBU SAMUEL,THAZHEDATHU VEEDU, VAZHAMUTTOM MURI, VALLICADU VILLAGE, KOZHENCHERRY. ADV. SRI. K.SHAJ SRI.SAJJU.S THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.222 OF 2009. EXHIBIT P2 COPY OF THE WRITTEN STATEMENT. EXHIBIT P3 COPY OF THE COMMISSION REPORT. EXHIBIT P4 COPY OF THE ORDER IN I.A. .NO.1074 OF 2009 EXHIBIT P5 COPY OF THE JUDGMENT IN C.M.A. NO.55 OF 2009 RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== O.P(C) No.432 of 2010 ==================================== Dated this the 12th day of November, 2010 J U D G M E N T Plaintiff in O.S. No.222 of 2009 of the court of learned Munsiff, Pathanamthitta is the petitioner before me, unsuccessful in getting an order of mandatory injunction to remove the alleged obstruction in item No.2 described by the petitioner as a way. Petitioner is the Power of Attorney holder of defendant No.2, her son who is working abroad. Defendant No.2 is said to have purchased the suit property. It is the case of petitioner that item No.2 is the way leading to item No.1 of the plaint schedule. It is the further case that item No.2, way was dedicated by owners for use of defendant No.2 and his predecessors. On 03.04.2009 respondent caused obstruction to the said way. It is also the case of petitioner that item No.2 is the only means of access to item No.1. Respondent filed counter statement contending that there is no such way in existence and that defendant No.2 purchased property on the south of item No.1 which is situate on the north of PWD road and abutting the said road. In the trial court an Advocate Commissioner inspected the property and submitted a O.P(C) No.432 of 2010 -: 2 :- report. Commissioner could not find any way as stated in plaint schedule item No.2 but stated that at the portion of item No.2 pointed out by petitioner there were plantains and other crops cultivated in the recent past. Advocate Commissioner also reported that there is no other means of access to item No.1 and hence it is possible to guess that access to item No.1 was through property of respondent. Learned Munsiff was not inclined to grant any order of mandatory injunction. Petitioner took up the matter in appeal. Learned District Judge referred to the materials on record and observed that going by the documents relied on by the petitioner it would appear that it is a case of easement by grant but learned District Judge was not able to find in favour of the existence of a way or to grant mandatory injunction as prayed for. Accordingly the C.M. Appeal was dismissed. That judgment is under challenge. Learned counsel for petitioner contended that in so far as in paragraph 25 of the judgment learned District Judge has referred to the right of petitioner and observed that it would appear that parties did not opt to exercise the grant as seen by the lie of the land reported by the Advocate Commissioner, temporary mandatory injunction should have been granted. Learned counsel for respondent O.P(C) No.432 of 2010 -: 3 :- contends that even going by the plaint schedule description property on the south of plant item No.1 belongs to defendant No.2 and according to learned counsel the PWD road abuts that property of defendant No.2. Learned counsel contends that from the PWD road it is possible for petitioner and defendant No.2 to gain access to the property belonging to defendant No.2 and from there, to item No.1. Learned counsel for petitioner would contend that it is only a mis-description in the plaint schedule and that the document will show that property on the south of item No.1 does not belong to defendant No.2. Now I am at the question whether interference under Article 227 of the Constitution is required. 2. I made an attempt to find whether some alternative arrangement could be made in the matter till the disposal of the suit. But on hearing both sides it appears to me that it is not possible to make any such interim arrangement. Parties stick on to their respective claim. 3. I stated that the Advocate Commissioner was not able to find existence of a way though Commissioner reported that in the portion described by petitioner as item No.2 he could find cultivation effected in the recent past. Whether that is the way O.P(C) No.432 of 2010 -: 4 :- referred to in the document relied on by petitioner as creating easement by way of grant in favour of defendant No.2 is a matter to be decided in the evidence. A temporary mandatory injunction to alter the situation as on date of suit can be granted only in exceptional circumstances as that would have the effect of granting decree in the suit even before trial. Having regard to these aspects I do not find it necessary to interfere with the impugned judgment and order. But considering the difficulty expressed by learned counsel on behalf of petitioner I direct learned Munsiff to give top priority for the suit and dispose of the same. Learned counsel on both sides tell me that case is ripe of trial. Resultantly, petition is disposed of directing learned Munsiff to give top priority to the suit and expedite the trial and disposal of the suit untrammelled by any observation in the impugned order/judgment or in this judgment. THOMAS P. JOSEPH, JUDGE. vsv