IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 WP(C).No. 29830 of 2008(A) --------------------------------------------- CMA.49/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.1120/2007 of PRL.M.C., ERNAKULAM .................... PETITIONERS: 1. BABY P.VARGHESE, S/O.VARGHESE, PARAKKATTU PAYYANAMYALIL HOUSE CHETHICODE P.O., ERNAKULAM. 2. BIJU P.BABY, S/O.BABY PARAKKATTU, PAYYANAMYALIL HOUSE, CHETHICODE PO., ERNAKULAM. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: 1. ABRAHAM, S/O.LATE ULAHANNAN, EDAMATTATHIL HOUSE, CHETHICODE PO., ERNAKULAM. 2. JOHN MATHEW, S/O.LATE MATHAI, EDAMATTATHIL HOUSE, CHETHICODE PO., ERNAKULAM. ADV. SRI.ABRAHAM K.JOHN FOR R1 SRI.M.MANOJKUMAR (CHELAKKADAN) FOR R2 SMT.SMITHA GEORGE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.29830 of 2008 A -------------------------- JUDGMENT Having heard the learned counsel for the petitioners at length, I am of the view that the directions made concurrently by the courts below to respondents 2 and 3 to remove the fence constructed across the alleged C schedule pathway requires to be maintained till the disposal of the suit, though the contention of the petitioners is that on the southern side of the scheduled property there is a paddy field and the pathway for the first respondent/plaintiff is through the bund in the paddy field, as those are matters on which evidence has be adduced at trial of the suit and detailed consideration of existence or otherwise of the alleged C schedule pathway does not require to be made in this writ petition, especially when a fence that was not there at the time of first inspection WPC 29830/08 2 by the Commissioner had been constructed along the common boundary of plaint A and B schedule properties enclosing also the entry to the alleged C schedule pathway. In the result, maintaining the concurrent orders passed by the courts below directing respondents 2 and 3 to remove the fence constructed blocking the entry to the alleged C schedule pathway on the common boundary separating A and B schedule properties, I dispose of this writ petition directing that the trial of the suit shall be conducted and the suit disposed of by the trial court on merits untrammeled by any of the observations made by the courts below in the impugned orders for the limited purpose of considering the interim injunction application. Parties to suffer their own costs. 25th November, 2008 (K.P.Balachandran, Judge) tkv