IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 W. P(C).No. 32144 of 2008(B) -------------------------------- PETITIONER : ------------------- KANNAM VEETTIL HAMZA, S/O.MUHAMMED, AGED 48, RESIDING AT KANNAM VEETTIL HOUSE, P.O. VALAKULAM, TIRURANGADI TALUK, VALAKULAM AMSOM DESOM. BY ADV. SRI.HARISH R. MENON SRI. K.T. SHYAM KUMAR RESPONDENS : ---------------------- 1. KANNAM VEETTIL AYISA, D/O. MAMMED, RESIDING AT KANNAM VEETTIL HOUSE, P.O. VALAKULAM, TIRURANGADI TALUK, VALAKULAM AMSOM DESOM. 2. KANNAM VEETTIL AHAMMED, S/O. MAMMED, RESIDING AT KANNAM VEETTIL HOUSE, P.O. VALAKULAM, TIRURANGADI TALUK, VALAKULAM AMSOM DESOM. 3. KANNAM VEETTIL PATHUMMU, D/O. MAMMED, RESIDING AT KANNAM VEETTIL HOUSE, P.O. VALAKULAM, TIRURANGADI TALUK, VALAKULAM AMSOM DESOM. 4. KANNAM VEETTIL ASSANKUTTY, S/O. MAMMED, RESIDING AT KANNAM VEETTIL HOUSE, P.O. VALAKULAM, TIRURANGADI TALUK, VALAKULAM AMSOM DESOM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 32144 of 2008 ------------------------------ Dated this the 31st day of October, 2008 JUDGMENT Heard counsel for petitioner. 2. Writ petitioner filed O.S. No.140 of 2005 in the court of learned Munsiff, Parappanangadi for a decree for prohibitory injunction to restrain the respondents/defendants from trespassing into the schedule property and, committing mischief. 3. Petitioner also filed I.A. No.915 of 2005 for an order of temporary injunction. Respondents claimed right of easement by way of grant through the disputed property. Learned Munsiff found that petitioner has not proved prima facie case and refused to grant temporary injunction. Though petitioner preferred C.M. Appeal No.23 of 2006 in the court of learned Sub Judge, Tirur, that appeal was dismissed in confirmation of the order of the learned Munsiff. It is challenging the said order and judgment that this writ petition is filed this petition. 4. Counsel for petitioner contended that the petitioner has W.P(c) No. 32144/ 2008 2 established prima facie case and that the claim of the respondents for right of way is not sustainable. Courts below considered the materials on record and found that petitioner is not entitled to the injunction prayed for. I have gone through the order and judgment under challenge. No jurisdictional error or illegality is committed by the courts below requiring this court to exercise the power under Article 227 of the Constitution. This court is also not required to interfere with the concurrent finding of fact entered by the courts below and the exercise of the discretionary power by those courts. 5. Learned counsel contends that though respondents have no claim of easement by way of necessity, learned Sub Judge observed in the judgment in C.M Appeal that even if it is held that the respondents are not entitled to any easement by way of grant, they can claim easement by way of necessity. According to the learned counsel that observation would prejudicially affect the petitioner in the trial of the suit. I make it clear that learned Munsiff will dispose of the suit untrammeled by any of the observation or finding contained in the W.P(c) No. 32144/ 2008 3 order in I.A. No.915 of 2005 or the judgment in C.M. Appeal No. 23 of 2006. With the above observation, this writ petition is dismissed. THOMAS P. JOSEPH, JUDGE scm