IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 1ST MARCH 2011 / 17TH PHALGUNA 1932 OP(C).No. 1056 of 2010(O) THE ORDER IN CMA 20/2010 AND CMA.19/2010 OF SUB COURT, TIRUR OS.61/2010 OF THE MUNSIFF'S COURT, PARAPPANANGADI PETITIONER KUNHEEDU, S/O. MOHAMMED @ BAPPU HAJI, THACHARUPADIKKAL KOLAKKATTIL HOUSE, S.S.ROAD, VENGARA,MALAPPURAM DISTRICT. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENTS: 1. KUNHIMOHAMMED, S/O. KUNHIMOIDU, PULIKKAL HOUSE, S.S.ROAD, VENGARA, MALAPPURAM DISTRICT-676304. 2. MAMMAD, S/O. MOIDEENKUTTY, THACHARUPADIKKAL KOLAKKATTIL HOUSE, S.S.ROAD, VENGARA, MALAPPURAM DISTRICT-676304. R1 BY ADV. SRI.K.K.MOHAMED RAVUF R2 BY ADV.SRI.AUGUSTINE JOSEPH SRI.K.S.ROCKEY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 1/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.61/2010 ON THE FILE OF MUNSIFF'S COURT, PARAPPANANGADI DATED 2.3.2010. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.NO.61/2010, MUNSIFF COURT, PARAPPANANGADI DATED 08.06.2010. EXT.P3 TRUE COPY OF I.A.NO.590/2010 IN O.S.NO.61/2010, MUNSIFF'S COURT, PARAPPANANGADI DATED 02.03.2010. EXT.P4 TRUE COPY OF THE REPORT OF THE COMMISSIONER IN O.S.NO.61/2010 ON THE FILE OF MUNSIFF'S COURT, PARAPPANANGADI ALONG WITH THE SKETCH DATED 15.3.2010. EXT.P5 TRUE COPY OF THE DETAILED OBJECTION ON COMMISSIONER'S REPORT ON 8.6.2010 BY THE DEFENDANT. EXT.P6 TRUE COPY OF I.A.NO.1156/2010 IN O.S.NO.61/2010, MUNSIFF'S COURT, PARAPPANANGADI DATED 9.6.2010. EXT.P7 TRUE COPY OF THE COMMISSIONER'S REPORT ON 26.10.2010. EXT.P8 TRUE COPY OF THE PLAINT IN O.S.NO.92 OF 2010 ON THE FILE OF MUNSIFF'S COURT, PARAPPANANGADI DATED 5.4.2010. EXT.P9 TRUE COPY OF THE COMMON JUDGMENT DATED 31.5.2010 IN W.P. (C) NO.13305 OF 2010 AND W.P.(C)NO.14956/2010. EXT.P10 TRUE COPY OF THE ORDER IN I.A.NO.590/2010 IN O.S.NO.61/2010, MUNSIFF'S COURT, PARAPPANANGADI DATED 30.6.2010. EXT.P11 TRUE COPY OF THE ORDER OF THE MUNSIFF OF PARAPPANANGADI IN I.A.NO.1156/2010 IN O.S.NO.61/2010, MUNSIFF'S COURT, PARAPPANANGADI DATED 30.6.2010. EXT.P12 TRUE COPY OF THE JUDGMENT OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR IN CMA.19/2010 AND CMA.NO.20/2010 ON ITS FILE DATED 20.11.2010. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE REPORT DATED 26.5.2010 ALONG WITH A SKETCH. EXT.R1(b) TRUE COPY OF THE OBJECTION. EXT.R1(c) TRUE COPY OF THE COUNTER IN O.S.NO.61/2010. EXT.R1(d) TRUE COPY OF THE OBJECTION IN I.A.NO.1154 OF 2010. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 1056 OF 2010 O ------------------------------------------------------ Dated this the 1st day of March, 2011 JUDGMENT The first respondent instituted O.S.No.61 of 2010 on the file of the Court of the Munsiff of Parappanangadi for a permanent prohibitory injunction restraining the defendant from obstructing the plaintiff from entering into plaint B schedule pathway, which, according to the plaintiff, is the way leading to his property. There is also a prayer for a mandatory injunction directing the defendant to restore the plaint B schedule pathway to its original position. 2. The defendant disputed the claim made by the plaintiff. According to the defendant, the pathway in question was intended for entering into his property and not to the property of the plaintiff. It was contended that the pathway was not being used by the plaintiff and that he has no right to use the same. 3. The trial court granted an order of temporary injunction in favour of the plaintiff. A Commissioner was also appointed, who O.P.(C) NO.1056 OF 2010 O :: 2 :: inspected the property and filed a report. The report would indicate that the way was in existence. Later, according to the plaintiff, the defendant violated the order of injunction and constructed a compound wall on the western side of his property extending upto the northernmost point thereby blocking the way at its entrance. The plaintiff filed I.A.No.1156 of 2010 to demolish that portion of the compound wall which was constructed blocking the way and to restore the entry to the pathway. The trial court, as per the order dated 30.6.2010 (Ext.P11), allowed the application and directed the defendant to remove the two feet width portion of the wall from the northern end at point 'A' in Ext.C4 sketch. As per the order dated 30.6.2010, the trial court confirmed the order of interim injunction and allowed the application for temporary injunction. The orders passed by the trial court were challenged by the defendant in C.M.A.Nos.19 and 20 of 2010 before the Sub Court, Tirur. The Sub Court confirmed the orders passed by the trial court. The petitioner challenges in this Original Petition the orders passed by the courts below. 4. It was found by the court below that at the time of O.P.(C) NO.1056 OF 2010 O :: 3 :: inspection by the Commissioner on the first occasion, there was clear entry to the plaint 'B' schedule pathway and the way was not blocked. Later, on the allegation that the defendant blocked the way by constructing a compound wall, the Commissioner was directed to inspect the property again. The Commissioner reported that a new compound wall was constructed blocking the way. The court below directed the two feet portion of the said compound wall to be removed by issuing an order of interim mandatory injunction. 5. Learned counsel for the petitioner submitted that the second respondent in this Original Petition, namely, Mammad, filed another suit, O.S.No.92 of 2010 before the Munsiff's Court, Parappanangadi against the plaintiff and the defendant in O.S.No.61 of 2010. In a Writ Petition filed before this Court as W.P.(C) No.14956 of 2010, in which one of the parties complained about police harassment, this Court expressed the view that O.S.No.61 of 2010 and 92 of 2010 are liable to be tried jointly. It is stated that an application for joint trial was filed thereafter, but the application was dismissed by the court below. The plaintiff in O.S.No.92 of 2010 is shown as the second respondent in this Original Petition. The O.P.(C) NO.1056 OF 2010 O :: 4 :: second respondent is not a party to O.S.No.61 of 2010 and he was not a party to the proceedings before the trial court as well as the appellate court, from which the Original Petition arose. Therefore, the question whether joint trial should have been allowed need not be considered in this Original Petition. In fact, while disposing of the C.M.As. the appellate court issued a direction to the trial court for reconsidering the application for joint trial. 6. The question to be considered in the Original Petition is whether the interim mandatory injunction granted by the trial court and confirmed by the appellate court is liable to be interfered with. There is no case for the petitioner/defendant that he constructed the compound wall at the northern end blocking the entry to plaint 'B' schedule pathway. He stated in the objections that after the interim order of injunction, he had not gone to that place at all and he had no occasion to violate the order of injunction. If so, the defendant cannot say that by the interim mandatory injunction, he would be an affected party. The court below directed that status quo as on the date of inspection by the Commissioner should be maintained by directing removal of the offending portion of the compound wall. The O.P.(C) NO.1056 OF 2010 O :: 5 :: orders and judgment passed by the courts below do not suffer from any illegality or irregularity. There is no error of law or jurisdictional error warranting interference under Article 227 of the Constitution of India. The Original Petition is, accordingly, dismissed. (K.T.SANKARAN) Judge ahz/