IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 OP(C).No. 3647 of 2011(O) ------------------------- PETITIONER --------------- DILEEP,AGED 38 YEARS, S/O.CHATHUNNY, THIRUKULAM HOUSE, ANNALLUR DESOM, THRISSUR DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): --------------------- 1. SILVI CHACKOCHAN, W/O.ALAPPATT CHACKOCHAN, KOODAPUZHA DESOM, CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN 680 307. 2. CHACKOCHAN, HUSBAND OF 1ST PETITIONR, KOODAPUZHA DESOM, EAST CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN 680 307. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3647/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.252/2006 OF THE MUNSIFF COURT CHALAKUDY. P2: COPY OF THE APPEAL MEMORANDUM IN A.S. NO.75/2010 OF THE SUB COURT IRINJALAKUDA. P3: COPY OF THE PLAINT IN O.S. NO.443/2010 OF MUNSIFF COURT CHALAKUDY. P4: COPY OF THE I.A. NO.1576/2011 IN O.S. NO.443/2010 P5: COPY OF THE ORDER OF THE MUNSIFF COURT IN I.A. NO.1576/2011 DATED 18/10/2011. P6: COPY OF THE DECISION REPORTED IN 1994 (1) KLT PAGE 448. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3647 of 2011 --------------------------------------- Dated this 10th day of November, 2011 JUDGMENT Ext.P5, order on Ext.P4, application in O.S.No.443 of 2010 of the Court of learned Munsiff, Chalakkudy refusing to stay trial of O.S.No.443 of 2010 until disposal of A.S.Nos.74 and 75 of 2010 arising from the judgment and decree in O.S.No.252 of 2006 is under challenge. 2. Petitioner/defendant in O.S.No.443 of 2010 filed Ext.P4, application on the premise that the matter directly and substantially in issue in O.S.No.252 of 2006 is directly and substantially in issue in O.S.No.443 of 2010 also and hence, since A.S.Nos.74 and 75 of 2010 filed by the parties against judgment and decree in O.S.N.252 of 2006 have not been disposed of, trial of O.S.No.443 of 2010 has to be stayed. That request was rejected by the learned Munsiff by Ext.P5, order. 3. Learned counsel for petitioner contends that since the issues involved in both the cases and which is pending decision in A.S.Nos.74 and 75 of 2010 are the same, trial of O.S.No.443 of 2010 ought to have been stayed. O.P(C).No.3647 of 2011 -: 2 :- 4. I am unable to accept the argument. Reason is that Ext.P1, plaint in O.S.No.252 of 2006 would show that the relief claimed by the respondents in that suit is declaration of right of easement by implied grant over plaint C and D schedule therein for access to the plaint A schedule allegedly belonging to the respondent, for a decree for prohibitory injunction against obstructing user of plaint C and D schedules and for fixation of eastern boundary of plaint A schedule. In O.S.No.443 of 2010, relief claimed is only recovery of possession of plaint C schedule therein which according to the respondents formed part of the property belonging to them and it was revealed from the report and plan submitted by the Advocate Commissioner in O.S.No.252 of 2006 that it is in the possession of petitioner. According to the respondents, petitioner trespassed into the plaint C schedule in O.S.No.443 of 2010 after the Advocate Commissioner first inspected the properties in O.S.No.252 of 2006. I am not inclined to think that the above brings the matter within the mischief of Sec.10 of the Code of Civil Procedure for ordering stay of O.S.No.443 of 2010. There is nothing to interfere with Ext.P5, order. This original petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-