IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 15183 of 2010(O) -------------------------- CMA.7/2010 of D.C & SESSIONS COURT,TRIVANDRUM OS.1580/2009 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONER: --------------- N.SURENDRAN NAIR,SRL-A-65,SANKAR ROAD, SASTHAMANGALAM VILLAGE,SASTHAMANGALAM PO, TRIVANDRUM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT: --------------- ASHOK KUMAR,TC.9/1842,K-105,KOCHAR ROAD, SASTHAMANGALAM PO, TRIVANDRUM-695 010. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 15183 of 2010 --------------------------------------- Dated this 21st day of May, 2010 JUDGMENT The writ petition is in challenge of judgment of learned District Judge, Trivandrum in C.M.A.No.7 of 2010 modifying the order of temporary injunction passed by learned Munsiff on I.A.No.8891 of 2009 in O.S.No.1580 of 2009. The dispute concerned nature and character of a way admittedly situated on the east of property of petitioner. Respondent claimed that the said way formed part of his family property which was subjected to partition as per document No.2373 of 1983 and in that partition the G schedule therein was allotted to the respondent which is plaint A schedule. The plaint B schedule is the pathway provided as per the said partition deed for access to plaint A schedule (G schedule in the partition deed). That pathway is described in the partition deed in block No.8. Alleging that petitioner/defendant has no right or interest in the said way and that he is attempting to trespass into the said way respondent filed the suit and applied for temporary injunction. According to the petitioner the disputed way is a public road vested in the local authority and for the purpose of construction of compound wall and gate he has obtained Exts.P1 W.P.C.No.15183 of 2010 : 2 : and P2, plan and permit. It is also his contention that the local authority had tarred the disputed road in the year 2006 and it is being maintained by the local authority. The further contention is that challenging Exts.P1 and P2 respondent had moved the Tribunal for Local Self Government Institutions (for short, “the Tribunal) but, the challenge failed. In that proceeding the local authority had claimed that the road belonged to and vesting in that authority. It is overlooking the said contention that learned Munsiff granted temporary injunction and restrained petitioner from constructing compound wall and gate on the eastern side of his property. Aggrieved, petitioner took up the matter in C.M.Appeal. Learned District Judge generally concurred with the view expressed by the learned Munsiff but modified the order of injunction to the extent that petitioner was permitted to put up compound wall on the eastern side of his property without gate. In holding so, learned District Judge observed Ext.P2 permit, no permission has been granted to put up a gate. Learned counsel for petitioner contends that petitioner had obtained information from the local authority under the provisions of the Right to Information Act and it has been clarified by the local authority that Ext.P2 permit takes in permission to put up a gate at a width of 5 feet. 2. Courts below have prima facie found that the disputed way formed part of property of family of the respondent which was W.P.C.No.15183 of 2010 : 3 : subjected to partition as per partition deed No.2573 of 1983. Even if it is assumed that Ext.P2 permit allows petitioner to put up the gate, question arises whether the disputed way is vested in the local authority. The documents produced by respondent prima facie revealed that the way formed part of property of family of respondent. It is to be established in evidence whether the way actually vest in the local authority and it had the right to issue Exts.P1 and P2. Courts below found a prima facie case in favour of the respondent. It is not as if the order of injunction against construction of gate causes any irreparable injury to the petitioner. For, the advocate commissioner has reported that petitioner has access to his property from the western side. In these circumstances I do not want to disturb judgment of learned District Judge modifying the order of injunction passed by the learned Munsiff. I make it clear that whatever finding entered by the courts below will be confined to the decision of the application for temporary injunction and shall not in any way effect the ultimate decision in the suit. Learned Munsiff shall dispose of the suit if the pre trial steps are completed as expeditiously as possible. With the above direction the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-