IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 OP(C).No. 1974 of 2011(O) ------------------------- OS.446/2009 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER : ------------------- P.T.THOMAS, S/O. THOMAS, AGED 52 YEARS, KAROTTUPURATH PALATHINKAL HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------- MILAN RAJ POTHANIKATT, S/O. RAJU PAUL, AGED 28 YEARS, POTHANIKATTU HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, PIN-683 540. ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1974/2011 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF O.S.NO.446/2009 EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER EXT.P3: COPY OF REPORT OF THE ADVOCATE COMMISSIONER EXT.P4: COPY OF IA NO.817/2010 FILED BY THE RESPONDENT EXT.P5: COPY OF OBJECTION FILED BY THE DEFENDANT EXT.P6: COPY OF ORDER PASSED IN IA NO.817/2010 IN OS 446/2009 RESPONDENT'S EXHIBITS : EXT.R1: COPY OF COMMISSION REPORT IN IA 2711/2009 IN OS 446/2009 EXT.R2: COPY OF THE COMMISSION REPORT IN IA NO.1067/2010 IN OS 149/2010 EXT.R3: COPY OF THE COMMISSION REPORT IN IA 2469/2010 IN OS 446/2009 //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ------------------------------- O.P.(C).No.1974 of 2011 -------------------------------- Dated this the 24th day of June, 2011 JUDGMENT The petitioner is the defendant in O.S.No.446 of 2009 on the file of the court of the Munsiff of Muvattupuzha. The suit is for declaration and injunction. The plaintiff claimed an easement by grant in respect of the plaint 'C' schedule property. The plaint B schedule property is a pathway. In the Commissioner's plan, B schedule property is shown as plots 1, 2 and 3. Plot 2 is the plaint 'C' schedule property. 2. The plaintiff filed an application for temporary injunction. It is stated that the court below granted an interim injunction and it is still in force. 3. The Commissioner appointed in the case, who inspected the property on 8.10.2009, reported that at the entrance of the plaint B schedule property rubbles were found. OPC 1974/2011 2 The Commissioner also found pits here and there in the pathway. In the report dated 6.4.2011, the Commissioner reported that plots 1, 2 and 3 (plaint B schedule property) is lying with ups and downs and smooth passage of vehicles is not possible. 4. The plaintiff filed I.A.No.817 of 2010 for permission to carry out maintenance work in the plaint B schedule property up to the entrance to his house in the plaint A schedule property for the purpose of smooth vehicular traffic. The plaintiff stated that he is prepared to do the work under the supervision of the Advocate Commissioner. In the affidavit accompanying I.A.No.817 of 2010, it was alleged that the defendant violated the order of injunction and made the pathway practically unusable. This allegation was denied by the defendant. 5. The court below, by the order dated 7th June 2011, allowed the prayer in I.A.No.817 of 2010 and permitted the plaintiff to do the minimum maintenance of the plaint B schedule road for the purpose of taking vehicles to the A schedule OPC 1974/2011 3 property. The court below also directed that the work shall be done in the presence of the Commissioner. The defendant challenges that order in this Original Petition. 6. The learned counsel for the petitioner submitted that the pathway leads to the property belonging to the wife of the defendant and that the plaintiff has no right to use the pathway. The counsel also submitted that the pathway belongs to the defendant and the defendant is prepared to do the maintenance work. 7. There was allegation that the defendant violated the order of injunction and made the road unfit for smooth vehicular traffic. When the Commissioner inspected the property on 8.10.2009, he noted the nature and condition of the pathway and the existence of pits in the pathway. In the report dated 6.4.2011 also, the Commissioner stated that unless maintenance work is done, smooth vehicular traffic would not be possible through the plaint B schedule pathway. OPC 1974/2011 4 8. There is no dispute that repair work is needed in the plaint B schedule. Who should do the maintenance work is the only dispute in this Original Petition. It would appear that the dispute in this Original Petition is only the result of ego clash between the parties. The court below permitted the plaintiff to do the work in the presence of the Commissioner. When the plaintiff alleged that the defendant, in violation of the order of injunction, made the pathway unusable for vehicular traffic, there was nothing wrong in permitting the plaintiff to do the repair work in the presence of the Commissioner. I do not find any illegality, irregularity or jurisdictional error in the order passed by the court below. The Original Petition lacks merit and it is accordingly dismissed. K.T.SANKARAN JUDGE csl