IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 OP(C).No. 18 of 2011(O) ----------------------------------- (AGAINST THE ORDER DATED 23/12/10 IN CMA 12/10 OF THE KOYILANDI SUB COURT IN I.A.400/10 IN O.S.82/10 OF THE MUNSIFF COURT,PAYYOLI) ...... PETITIONER: ---------------------- 1. P.T.K.REENA, D/O.BALAN,AGED 32 YEARS, KUNNIYULLA VEETTIL HOUSE, CHERAPURAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT PIN - 673 512. 2. KUNNIYULLA VEETTIL PAVITHRAN, S/O.KANARAN, AGED 40 YEARS, KUNNIYULLA VEETTIL HOUSE, CHERAPURAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISRICT, PIN- 673 512. BY ADVS. SRI.ALEX.M.SCARIA, SRI. SAJEEVAN KURUKUTTIYULLATHIL. RESPONDENT(S): ---------------------------- PULICHANANDI ISMAIL, S/O. AMMAD, AGED ABOUT 32 YEARS, CHERAPURAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT 673 512. BY ADVS. SRI.V.V.ASOKAN, SMT. RUKHYABI MOHAMMED KUNHI. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.T.SANKARAN, J. ------------------------------ O.P(C).No.18 OF 2011 ------------------------------ Dated this the 21 st day of February, 2011 JUDGMENT The plaintiffs in O.S.No.82 of 2010 on the file of the Court of the Munsiff-Magistrate of Payyoly, whose application for temporary injunction was dismissed by the trial court and which was confirmed in appeal, are the petitioners in this Original Petition. They challenge the concurrent findings of the court below in the application for temporary injunction. 2. The petitioners/plaintiffs claimed an easement of necessity to pass through the plaint D schedule property shown as a pathway leading from Kuttiyadi-Poomugham road and which according to the plaintiffs pass through the property of the defendant and reaches the plaint A schedule property. The trial court found that the Commissioner has reported that the property of the defendant is filled with 'red sand' and no pathway O.P(C).No.18 OF 2011 2 was seen as claimed by the plaintiffs. The Commissioner's report also shows that a coconut tree, a pit and certain glyrecidia plants exist at the place where the pathway was claimed to be in existence. The trial court found that these would indicate that the 'D' schedule property is not a pathway which was in existence. A wooden bridge was found connecting the A schedule property and the defendant's property, placed across a canal. It was held that the existence of such a bridge by itself would not lead to the conclusion that a pathway was in existence. Taking into account the facts and circumstances of the case, and also taking note of the balance of convenience, and the tests for granting or refusing temporary injunction, the trial court held that the plaintiffs have not made out a prima facie case for the grant of temporary injunction. The appellate court confirmed the findings of the trial court. 3. In an Original Petition under Article 227 of O.P(C).No.18 OF 2011 3 the Constitution of India, the High Court would not be justified in interfering with the findings of fact arrived at by the courts below after considering the facts and circumstances of the case. The courts below have considered all relevant aspects and I do not find any jurisdictional error or error of law warranting interference under Article 227 of the Constitution of India. 4. The learned counsel for the petitioners submitted, with reference to paragraph 4 and 5 of the Commissioner's report dated 7.7.2010 (Ext.P5) that there is no other way leading to the plaint A schedule property. It is submitted that if no interim order is granted, the plaintiffs would be put to irreparable injury. 5. In the peculiar facts and circumstances of the case, I am of the view that the trial court can be directed to expedite the trial of the suit. O.P(C).No.18 OF 2011 4 The Original Petition is disposed of as follows: a. The challenge against the order in I.A.No.400 of 2010 and the judgment in CMA 12 of 2010 is rejected. b. The trial court shall expedite the trial of the suit and make earnest attempts to dispose of the suit before the end of July, 2011. c. The trial court shall dispose of the suit untrammelled by the observations and findings in the order and judgment challenged in this Original Petition. K.T.SANKARAN, JUDGE. cms