IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 OP(C).No. 894 of 2010(O) ------------------------ CMA.28/2010 of DISTRICT COURT,TRIVANDRUM OS.1741/2009 of II ADDL.M.C.,TRIVANDRUM (IA 9833/09) .................... PETITIONER ------------------------------ C.MOHANDAS,AGED 53 YEARS, S/O.LATE CHELLAPPAN NADAR, T.C.2/2286 TPJ ROAD NO 135-A.,PATTTOM,REP.BY BROTHER AND POER OF ATTORNEY HOLDER C.SANTHOSHKUMAR, S/O.LATE CHELLAPPAN NADAR TC 11/1863 MULASSERY LANE, KOWDIAR P.O., THIRUVANANTHAPURAM' BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENT: --------------- SREEKUMAR T.P.,J 136 PATTOM, PLAMOODU THIRUVANANTHAPURAM,NOW WORKING AS SALESMAN VIJAYA ENTERPRISES, PETROL PUMP, OPP-ST.JOSEPH'S SCHOOL, G.H.ROAD, THIRUVANANTHAPURAM-695004 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.894 of 2010 --------------------------------------- Dated this 29th day of November, 2010 JUDGMENT Plaintiff in O.S.No.1741 of 2009 of the court of learned Additional Munsiff, Thiruvananthapuram and appellant in C.M.A.No.28 of 2010 of the court of learned District Judge, Thiruvananthapuram is the petitioner before me challenging dismissal of I.A.No.9833 of 2009 as confirmed by the learned District Jude in the C.M appeal. Petitioner sued for a decree for prohibitory injunction against respondent closing down plaint B schedule which petitioner described in the plaint as a way having width of 3 links and length of 15feet. According to the petitioner, plaint A schedule belonged to him as per Ext.P3, assignment deed No.5179 of 2007 and he was given a right of easement by way of grant over plaint B schedule as per the said document. But respondent attempted to close down the said way. hence petitioner filed the suit and applied for an order of temporary injunction. In the trial court Advocate Commissioner inspected the property and submitted Ext.P7, report. Trial court was inclined to hold that descriptions in Ext.P3, assignment deed regarding the way did not tally with plaint B schedule O.P(C).No.894 of 2010 : 2 : descriptions or as reported by the Advocate Commissioner and refused to grant injunction. Learned District Judge confirmed the said order observing that it would appear that petitioner is claiming right of way through another plot of land not mentioned in Ext.P3, assignment deed and regarding that way there is no proper plea of easement. Learned counsel submits that petitioner has aright of easement by implied grant over plaint B schedule. Learned counsel has referred me to a passage from Easement and Licences by Katiar, page 253 where it is stated that if the right of way existed during common ownership it cannot in the strict sense be described as an 'easement' but is a 'quasi- easement'. It is also contended by learned counsel that there are circumstances indicating implied grant in favour of petitioner which the courts below have not taken into account. The further argument advanced by learned counsel is that finding of the courts below that the claim made in the plaint is in respect of a way different from the way then referred to in Ext.P3, assignment deed is not correct. 2. I have been taken through Ext.P3, assignment deed in favour of petitioner concerning plaint A schedule. There, description regarding way is thus:- a way of having width of 3 links running east-west along the northern side of plaint A schedule. The plaint or Ext.P3, assignment deed does not say that O.P(C).No.894 of 2010 : 3 : the said way extended further towards east of plaint A schedule. Obviously, that is the reason why petitioner is now setting up a claim of easement by way of implied grant through plaint B schedule apart from the right granted to the petitioner for access to plaint A schedule as per Ext.P3, assignment deed. Commissioner has also reported that the disputed property is not lying as a way in the way it is described in plaint B schedule. It is in these circumstances courts below have refused to grant injunction with respect to plaint B schedule. 3. If petitioner has a contention that he has, apart from the right granted to him over the way referred to in Ext.P3, right of access to the property described by the Advocate Commissioner in his report it is open to him to prove that case of his. Now courts below have found concurrently that the way described in Ext.P3, assignment deed is not the way Advocate Commissioner has reported in Ext.P4. In view of that finding I do not find reason to interfere with orders passed by the courts below but, I make it clear that the trial court shall decided the suit untrammeled by the findings in the judgment/order under challenge. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-