IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP(C).No. 2194 of 2011(O) ------------------------- AGAINST THE ORDER DATED 18/03/2011 IN 42/2009 IN CMA.35/2009 of SUB COURT, TIRUR .................... PETITIONER/RESPONDENT IN CMA NO.35/2009/APPELLANT IN CMA 42/2009 & DEFENDANT IN SUIT: --------------------------------------------------- THANIKKAL HAMZA, AGED 45 YEARS, S/O.MUHAMMEDKUTTY, MELMURI AMSAM AND DESAM, TIRUR TALUK. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): APPELLANTS IN CMA 35/2009/RESPONDENTS IN CMA 42/2009 & PLAINTIFF IN SUIT: ------------------------------------------------------------------------------- 1. KOLLARAMBAN NABEESA, AGED 39 YEARS, W/O.MUHAMMED, MELMURI AMSAM AND DESAM, TIRUR TALUK-676 514. 2. NASEEMA, AGED 24 YEARS, D/O.SHAMSUDHEEN, MELMURI AMSAM AND DESAM, TIRUR TALUK-676 514. 3. KALATHINGAL SHAMSUDHEEN, AGED 45 YEARS, MELMURI AMSAM AND DESAM, TIRUR TALUK-676514. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.2194/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.236/09 BEFORE THE HON'BLE MUNSIFF COURT, TIRUR. P2: COPY OF I.A.NO.1917/09 IN O.S.NO.236/09 BEFORE THE HON'BLE MUNSIFF COURT, TIRUR. P3: COPY OF WRITTEN STATEMENT DTD. 07/12/09, IN O.S.NO.236/09 BEFORE THE HON'BLE MUNSIFF COURT, TIRUR. P4: COPY OF THE COMMISSIONERS REPORT. P5: COPY OF THE SECOND COMMISSION REPORT DTD. 30/09/09. P6: COPY OF THE ORDER IN I.A.NO.1917/09 IN O.S.NO.236/09 BEFORE THE HON'BLE MUNSIFF COURT, TIRUR DTD. 09/10/09. P7: COPY OF THE COMMON JUDGMENT OF THE HON'BLE SUB JUDGE, TIRUR IN CMA NO.35/2009 AND 42 OF 2009 DTD. 18/03/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2194 of 2011 ==================================== Dated this the 11th day of July, 2011 J U D G M E N T This Original Petition is in challenge of common judgment passed by the learned Sub Judge, Tirur in C.M.A. Nos.35 of 2009 and 42 of 2009 whereby the order passed by leaned Munsiff, Tirur on I.A. Nos.2222 of 2009 and 1917 of 2009, respectively in O.S. No.236 of 2009 are confirmed. As per the impugned order, learned Munsiff directed petitioner to remove the alleged obstruction caused to the disputed pathway even after the institution of the suit and the learned Munsiff passed order of temporary injunction on I.A. No.1917 of 2009. 2. At the time of hearing learned counsel submitted that right of petitioner over the disputed pathway as per Ext.B1, document was not taken into account. However, after arguing the matter for some time learned counsel for petitioner sought permission to withdraw the Original Petition without prejudice to the right of petitioner to challenge the right of way claimed by the respondents at the time of trial of the suit. I do not find reason to disallow the said request. O.P(C) No.2194 of 2011 -: 2 :- Original Petition is dismissed as withdrawn without prejudice to the right of petitioner to challenge the right of way claimed by the respondents in the course of trial of the suit untrammelled by any observation contained in the common judgment/order under challenge. THOMAS P. JOSEPH, JUDGE. vsv