IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 FAO.No. 298 of 2011() --------------------- AGAINST THE ORDER DATED 07/09/2011 IN IA.2477/2011 IN AS.58/2011 of SUB COURT, OTTAPPALAM O.S.87 OF 2009 OF MUNSIFF'S COURT, PATTAMBI .................... APPELLANTS/PETITIONERS/APPELLANTS (S): ---------------------------------------------------------------- MUHAMMED @ VAPPU, S/O. EACHARATHU VALAPPIL LATE MOITHUNNI, KAVUKKODU AMSOM, PADISSEERI DESOM, OTTAPALAM TALUK. 2. HAMEED, S/O. EACHARATHU VALAPPIL LATE MOITHUNNI, KAVUKKODU AMSOM, PADISSEERI DESOM, OTTAPPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S)/RESPONDENT/RESPONDENT: --------------------------------------------------------------- ABDULLAKUTTY, S/O. EACHARATHU VALAPPIL KUNHIMOIDEENKUTTY, KAVUKKODU AMSOM, PADISEERI DESOM, OTTAPALAM TALUK, PIN: 679 536. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 298 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October, 2011. JUDGMENT Aggrieved by the order dated in I.A.2477 of 2011 in A.S.58 of 2011, the petitioners before the court below have come up in appeal. They were the defendants in O.S.87 of 2009 before the Munsiff's Court, Ottapalam. 2. The suit related to the existence and the use of the way by the plaintiff. The grievance of the plaintiff was that the pathway was attempted to be reduced into their possession by the defendants by obstructing its use by the plaintiff. The defendants have no manner of right to do so. It is seen that the defendants resisted the suit. Whatever that be, ultimately a decree was passed in favour of the plaintiff enabling him to use the pathway shown in Ext.C6 plan. It was also ordered that Ext.C6 plan shall form part of the decree. F,A,O. 298/2011. 2 3. Defendants carried the matter in appeal as A.S.58 of 2011. In the appeal, they filed I.A.2477 of 2011 seeking interim injunction against the respondent from altering the nature of the pathway or alienating the same. 4. That was opposed by the respondent. The lower appellate court took the view that since the respondent in the petition had claimed right of user of the way, it is inconceivable that he would tamper with the pathway or alienate the same. According to the learned counsel the application is a misconceived one and it is dismissed. 5. Learned counsel for the appellants pointed out that the finding of the lower appellate court infact creates confusion regarding the use of the pathway by the defendants in the suit, who were the appellants before the lower appellate court. Drawing attention to the plaint it is pointed out that even according to the plaintiff in the suit the defendants too had a right of user of the way and that F,A,O. 298/2011. 3 aspect has been omitted to be noticed by the lower appellate court. 6. In the nature of the order that is sought to be passed, it is felt that no notice to the respondent is necessary. From the plaint, that is read out to this court, it is seen that the plaintiff has no case that the defendants have no right to use the pathway. Their only apprehension was that the defendants will reduce it into their possession and the plaintiff is not seeking prohibition of the defendants using the way. The decree is being interpreted, it is alleged, to prevent the defendants from using the way. This appeal is disposed of clarifying that the defendants too will be entitled to use the pathway shown in Ext.C6, which is appended to the decree. The position as obtaining in Ext.C6 shall be maintained until the appeal is disposed of. P. BHAVADASAN, JUDGE sb.