IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 SA.No. 445 of 1995(C) --------------------- AS.49/1993 of SUB COURT, VADAKARA OS.206/1988 of MUNSIFF COURT, NADAPURAM .................... APPELLANT/RESPONDEN/DEFENDANT: ----------------- LAKSHMI NIVAS BHAVANIL PARKUM THAZHE KUNIYIL KOYILOTH RAMATH LAKSHMIKUTTY AMMA, KUTTIPRAM AMSOM, DESOM, VADAKARA. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT/APPELLANT/PLAINTIFF --------------- THAROLA KANDIYIL PARKUM KALASSERI KADAVATH PATHU, IYYAMKODE AMSOM, KAKKATTIL DESOM, VADAKARA. ADV. SRI.M.C.SEN, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- S.A.NO.445 OF 1995 ---------------------------- DATED THIS THE 28th DAY OF MAY, 2009 JUDGMENT Defendant is the appellant herein. This second appeal is directed against the judgment and decree in A.S. No.49/1993 on the file of the Court of the Suborindate Judge, Vadakara, which arise from the judgment and decree in O.S.No.206/1988 on the file of the Munsiff's Court, Nadapuram. 2. The suit was dismissed by the trial court; but the decree was reversed in appeal by the Lower Appellate Court. It is the plaintiff's case that the plaint A schedule property is part of plaint B schedule property, which belongs to the plaintiff. The suit was filed for injunction restraining the defendant from putting up a gate on the southern end of the plaint schedule road and from making any alteration. The suit was resisted by the defendants stating that the disputed pathway was constructed by the defendant's husband on his own cost and spent much mounts -2- S.A.No.445/1995 and they are using the same for the last 40 years and are in exclusive possession of the said extent. After considering the evidence let in by the parties, the trial court held that the plaintiff has miserably failed to prove that she is in possession of the plaint A schedule pathway and therefore the suit was dismissed. In appeal the Lower Appellate Court reversed the decree passed by the trial court and decreed the suit restraining the defendant and her men from blocking the entry to plaint A schedule road by constructing gate or wall and also preventing the entry of plaintiff and others to plaint A schedule property. 3. It is not disputed that plaint A schedule is a passage in use by both the plaintiff and defendant. The defendant is residing at the other end of the passage and she is using the plaint A schedule passage for her ingress and egress. The learned counsel for the appellant/defendant submitted that he had no idea to block the passage by putting up a gate; but in order to prevent unauthorised parking, she proposed to put up a gate. The learned -3- S.A.No.445/1995 counsel also submitted that he is not opposing the use of the pathway by the plaintiff or tenants. It is a fact that the road was in existence for the last so many years and the plaintiff's buildings are situated on the other side of the pathway. Admittedly both are the users of the pathway. So there is no meaning in passing any order of injunction against each other restraining them from enjoying the pathway for their ingress and egress. The apprehension expressed by the learned counsel for the appellant is correct. There is a chance of third person parking vehicles and storing other materials on the road, so that the smooth traffic will be blocked. 4. In the circumstances, both sides shall jointly enjoy the pathway without any hindrance from outside. Both sides shall be vigilant in not permitting the parking of vehicles including their vehicles in the passage. They shall also be vigilant to see that no materials are dumped either by them or by third persons. It is submitted that the defendant shall maintain the passage and -4- S.A.No.445/1995 therefore the plaintiff shall not prevent the defendant from maintaining the plaint A schedule passage and shall also co- operate with the defendant for the maintenance of the passage. The judgment of the Lower Appellate Court is modified accordingly. Appeal is disposed of with the above directions. Sd/- HARUN-UL-RASHID, Judge. kcv. -5- S.A.No.445/1995 HARUN-UL-RASHID,J. -------------------------- S.A.NO.445 OF 1995 -------------------------- JUDGMENT 28th May, 2009 -6- S.A.No.445/1995