IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 OP(C).No. 697 of 2010(O) ------------------------------------ AS.NO. 65/2010 of PRINCIPAL SUB COURT, ATTINGAL .................... PETITIONERS -------------------- 1. SREE SUBRAMANYA SWAMI TEMPLE , CHERUKARA KEDAKULAM, ELAKAMON P.O. 2. SREE SUBRAMANYA SWAMI TEMPLE , CHERUKARA KEDAKULAM ,REPRESENTED BY ITS PRESIDENT RAJENDRA KUMAR, S/O.SURENDRAN, ASOKA MANDIRAM, ELAKAMON, AYIROOR, VARKALA 695 310. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENT(S): -------------------------- SULOCHANA AMMA, CHRUKARA VEEDU KEDAKULAM, ELAKAMON PO, AYIROOR, VARKALA PIN 695 310. BY ADV. SRI.MILLU DANDAPANI SRI.MATHEW KURIAKOSE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2011, ALONG WITH FAO NO.374 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.697/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE I.A.NO.945/10 IN A.S. NO.65/10. P2 COPY OF THE JUDGMENT DATED 18/7/2007 IN C.M.A.NO.5/06 PASSED BY THE SUB COURT, ATTINGAL. P3 COPY OF THE ORDER DATED 09/06/2010 PASSED BY THE SUB COURT ATTINGAL IN I.A.NO.945/10 IN A.S.NO.65/10. P4 COPY OF THE COUNTER AFFIDAVIT DATED 26/6/10 IN I.A.NO.945/10. P5 COPY OF THE I.A.NO.1153/10 DATED 26/6/10 IN A.S.NO.65/10. P6 COPY OF THE I.A.NO.1155/10 DATED 2/7/10 IN A.S.NO.65/10. P7 COPY OF THE OBJECTION IN I.A.NO.1153/10 FILED BY THE RESPONDENT. P8 COPY OF THE OBJECTION IN I.A.NO.1153/10 FILED BY THE RESPONDENT. P9 COPY OF THE JUDGMENT IN WP(C)NO.21623/10 DATED 12/7/10 OF THIS HON'BLE COURT. P10 COPY OF THE SETTLEMENT DEED NO.4851/1952 DATED 6/10/52 P11 COPY OF THE COMMISSION REPORT FILED BEFORE THE MUNSIFF COURT, VARKALA. P12 COPY OF THE PLAN SUBMITTED ALONG WITH COMMISSION REPORT. P13 COPY OF THE ORDER PASSED BY THE COURT BELOW IN I.A.NOS.945/10, 1153/10, 1155/10 DATED 20/8/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts HARUN-UL-RASHID, J. ------------------------ O.P.(C).No.697 Of 2010 and F.A.O.No.374 of 2010 -------------------------- Dated this the 30th day of March, 2011. J U D G M E N T Common order passed by the Sub Court, Attingal in I.A.Nos.945, 1153 & 1155 of 2010 dated 20.8.2010 is under challenge. The F.A.O is filed by defendants 1 to 3 in O.S.No.330/2005 on the file of the Munsiff Court, Varkala. The O.P is filed by defendants 1 & 2 in O.S.No.330/2005 of the same court. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. O.S.No.330/2005 was filed by the plaintiff to pass a decree for perpetual injunction restraining the defendants from causing any obstruction to the use and enjoyment of plaint C schedule pathway which according to the plaintiff is passing through plaint B schedule property as an access to plaint A schedule property owned by her. The trial court dismissed the suit finding that the plaintiff failed to prove the existence and use of pathway as of right. The appeal preferred by the plaintiff is pending as A.S.No.65/2010 before the Sub Court, Attingal. In ::2:: O.P.(C).No.697 Of 2010 and F.A.O.No.374 of 2010 the appeal the parties filed three I.As. I.A.No.1153/2010 was filed by defendants 1 to 3 for a direction permitting them to reconstruct the damaged portion of the compound wall on the existing foundation. I.A.No.945/2010 was filed by the plaintiff for an order of temporary injunction restraining the defendants 1 to 3 who are respondents 1 to 3 in the appeal from making any construction in plaint C schedule and disturbing the peaceful enjoyment of the same by the plaintiff. I.A.No.1155/2010 was also filed by the plaintiff for a direction to defendants 1 to 3 who are respondents 1 to 3 in the appeal to remove the obstructions caused by them to plaint C schedule way after the order of status quo was passed by the appellate court in I.A.No.945/2010 and further to permit the petitioner to remove the obstruction caused if the defendants failed to remove the obstructions. There is also a prayer to initiate prosecution steps against the defendants. The lower appellate court considered the aforesaid three I.As and passed the common order dated 20.8.2010, which is marked as Ext.P3 in the O.P. This order is under challenge in both F.A.O and in the O.P. ::3:: O.P.(C).No.697 Of 2010 and F.A.O.No.374 of 2010 3. The dispute in this case mainly centered around the existence of plaint C schedule pathway. There is no dispute regarding the ownership of plaint A schedule by the plaintiff or B schedule by defendants 1 to 3. The trial court after perusing the commissioners report and plan prima facie opined that there is existence of the C schedule pathway as revealed from Exts.C1 & C2 reports and C2(a) plan prepared by the commissioner appointed by the trial court. The appellate court also referred to the commissioner's testimony as PW4, that the plaintiff has no other way for her ingress and egress. The court also taken note of the fact that no other way was found in existence by the commissioner. In these circumstances the court allowed I.A.No.945/2010 restraining the defendants from making constructions in plaint C schedule pathway and from disturbing the plaintiff in using plaint C schedule pathway pending disposal of the appeal. The learned Judge also considered I.A.Nos.1153 & 1155 of 2010. On the basis of the aforesaid reasons the lower appellate court negatived the plea of defendants 1 to 3 for permission to reconstruct the compound wall for the reason that ::4:: O.P.(C).No.697 Of 2010 and F.A.O.No.374 of 2010 it is intended only to defeat the appeal by closing down the way claimed by the plaintiffs. The court also granted the prayer for interim mandatory injunction against defendants 1 to 3 allowing I.A.No.1155/2010 to remove the obstruction caused to plaint C schedule pathway. The court also observed that prayer for prosecution can be considered only after taking evidence. In the facts and circumstances discussed above, the lower appellate court by passing the impugned order granted some interim relief of the plaintiff based on the materials on record. This Court is not justified in interfering with the discretionary relief extended by the lower appellate court in the I.As pending appeal. Accordingly, the F.A.O and the O.P are dismissed. In the interest of justice and taking into account the submission of the learned counsel for the petitioner/appellant, this Court direct the appellate court to consider and dispose of the appeal at an early date, at any rate, within a period of six months from the date of receipt of a copy of this judgment. HARUN-UL-RASHID, Judge. bkn/-