IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 FAO.No. 355 of 2010() -------------------------------- AGAINST THE ORDER DATED 19/10/2010 IN IA 33/2010 IN AS.125/2008 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.198/2003 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANTS/CR.PETITIONERS 1 & 2 ----------------------------------------------------- 1. RETNAMANI, AGED 47 YEARS, W/O. GANESAN, KUDASSERIL THEKKETHIL, PUTHUPALLY NORTH MURI, PUTHUPALLY VILLAGE. 2. GANESAN, AGED 52, S/O. BHARATHI, KUDASSERIL THEKKETHIL, PUTHUPALLY NORTH MURI, PUTHUPALLY VILLAGE. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ANEISH.S SRI.ARUN KRISHNADHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) RESPONDENT(S): PETITIONERS / CR.PETITIONER NO.3 -------------------------------------------------------------------------------- 1. RAJAN JOHN @ RAJU, MULLASSERIL HOUSE, PUTHUPALLY NORTH, PUTHUPALLY VILLAGE. 2. EAPEN JOHN @ SAJUMON, MULLASSERIL HOUSE, PUTHUPALLY NORTH, PUTHUPALLY VILLAGE. 3. JANAKIAMMA, SAVITHRI AMMA, KUDASSERIL PADEETTATHIL VEEDU, PUTHUPALLY NORTH MURI, PUTHUPALLY VILLAGE. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.4053/2010 IN F.A.O.NO. 355/2010 DISMISSED 08/11/2010 SD/- HARUN-UL-RASHID TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- F.A.O. NO. 355 OF 2010 & CAVEAT O.P.No.1011 OF 2010 ------------------------------- DATED THIS THE 8TH DAY OF NOVEMBER, 2010 JUDGMENT Plaintiffs in O.S.No.198/200 on the file of the Munsiff's Court, Kayamkulam are the appellants. The appeal is directed against the interim order dated 19/10/2010 passed in I.A.No.33/2010 in A.S.No.125/2008 on the file of the Additional District Judge-I, Mavelikara. The suit was filed for prohibitory injunction restraining respondents 1 and 2 from trespassing into the plaint schedule property and constructing a new way over the same by demolishing the existing boundaries. The defendants contended that there is a way passing through the property of the plaintiffs which leads to their property. The defendants filed a counter claim to declare their easement right over the way. The trial court deputed a Commissioner on three occasions. The Commissioner submitted Exts.C1 to C3 reports and C1(a), C2(a) and C3(a) plans. The trial -2- F.A.O.No.355/2010 court, after considering the oral and documentary evidence, found that the defendants failed to establish the existence of way as on the date of the counter claim. Therefore, the defendants are not entitled to get any prohibitory injunction as prayed for in the counter claim. The suit was decreed as prayed for and the counter claim was dismissed. Defendants 1 and 2 preferred A.S.No.125/2008 before the Additional District Judge-I, Mavelikara. In the appeal the defendants/appellants averred that there is a way and they have complained that the plaintiffs are obstructing the user of the pathway. I.A.No.33/2010 was filed praying for a mandatory injunction directing the plaintiffs/counter petitioners therein to pull down the constructions erected and also to remove the building materials stocked obstructing the way. The Appellate Court held that when there is specific order by the court not to obstruct the way, counter petitioners are not expected to violate the order causing obstructions to the way. The Lower Appellate Court directed the plaintiffs to remove all the obstructions including the -3- F.A.O.No.355/2010 constructions made encroaching into the disputed way shown in Ext.C3(a) plan within 14 days, failing which the petitioners can remove the obstructions at their costs after obtaining order from the court. This order is under challenge in this appeal. 2. In the nature of the order passed by the trial court decreeing the suit and dismissing counter claim and after hearing the matter in detail, I am of the view that in the interest of justice, a direction to dispose of the appeal within a short time will serve the ends of justice. Here is a case where one party obstructs the way and the other party wanted to remove the obstructions caused to the alleged way. 3. The trial court on evidence held that there is no way in existence through the plaintiffs' property. In such circumstances, without agitating the said question at the interlocutory stage, this Court is of the view that the appeal itself can be decided finally. The appeal is of the year 2008. Therefore, I direct the Additional District Judge-I, Mavelikara to hear and dispose of the appeal -4- F.A.O.No.355/2010 within a period of four months from the date of receipt of the copy of the judgment. The order dated 19/9/2010 in I.A.No.33/2010 shall be kept in abeyance, till the appeal is finally disposed of. Appeal is disposed of as above. HARUN-UL-RASHID, Judge. kcv.