IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 6365 of 2010(O) ------------------------- CMA NO.14/2009 OF SUB COURT, THALASSERRY IA NO.1717/2008 IN OS.261/2008 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER(S): --------------- P.K.SREEDHARAN NAMBIAR, S/O. KUNHIKANNAN NAMBIAR,POKKANTAVALAPU (H), KOLARY AMSOM, PORORE(.P.O.), THALASSERRY. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA RESPONDENT(S): --------------- PULLANZHIYODAN SREEDHRAN, S/O. KUNHIRAMAN NAMBIAR, BANK EMPLOYEE, "CHANDRALAYAM KOLARI AMSOM, MANNUR DESOM, PARORE(P.O.), THALASSERRY. ADV. SRI.K.V.PAVITHRAN SRI.M.P.JAYANANDAN SRI.T.P.SAEED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6365/2010 APPENDIX PETITIONER'S EXHIBITS” EXT.P1 TRUE COPY OF PLAINT IN OS NO.261/2008 ON THE FILE OF MUNSIFF COURT, KUTHUPARAMBA EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED IN OS 261/2008 BY THE DEFENDANT EXT.P3 TRUE COPY OF THE COMMISSION REPORT DATED 3.12.2008 FILED BY ADVOCATE COMMISSIONER IN IA NO.1717/2008 IN OS 261/2008 EXT.P4 TRUE COPY OF ORDER IN IA 1717/2008 IN OS 261/2008 DATED 25.6.2008 OF MUNSIFF COURT, KUTHUPARAMBA EXT.P5 TRUE CPY OF ORDER DATED 4.2.2009 IN CMA 14/2009 ON THE FILE OF SUB COURT, THALASSERRY EXT.P6 TRUE COPY OF AFFIDAVIT AND PETITION FILED IN SUPPORT OF IA NO.493/2010 IN CMA 14/2009 ON THE FILE OF SUB COURT, THALASSERRY AND ORDER DATED 5.2.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.6365 of 2010 -------------------------------------- Dated this the 25th day of June, 2010. JUDGMENT Defendant in O.S.No.261 of 2008 of the court of learned Munsiff, Kuthuparamba is the petitioner before me challenging the order passed by the learned Munsiff on I.A.No.1717 of 2008 as confirmed by the appellate court in C.M.A.No.14 of 2009. Respondent/plaintiff sued for a declaration of right of easement by way of prescription over plaint B schedule and for prohibitory injunction against petitioner obstructing his user of the said way. He also prayed for a mandatory injunction to direct petitioner to remove the obstruction already caused to the said way. According to the respondent, plaint A schedule belonged to him as per Ext.A3, assignment deed No.3050 of 2007 dated 14.11.2007 executed by one Kadhisumma who got the said property from one Ayisumma in the year 1989. It is his case that plaint B schedule is the only access to plaint A schedule which himself and his predecessors-in-interest are using since 35 years which is attempted to be obstructed by petitioner. On 07.11.2008 petitioner attempted to block plaint B schedule and put up certain structures. Petitioner/defendant contended that plaint A and B schedules are not identifiable from plaint schedule descriptions and that property on the north of plaint A schedule belonged to him. There is no such way as described in plaint B schedule though an ‘eda’ was formed by scooping of soil. Over that place respondent/plaintiff has no manner of right. Advocate Commissioner inspected WP(C) No.6365/2010 2 the property and submitted Exts.C1 and C2, report and sketch. Advocate Commissioner reported that on the western side of property of petitioner there is a wall constructed across the disputed way at the point shown in green line in Ext.C2, sketch. Respondent filed I.A.No.1717 of 2008 for a mandatory injunction. Learned Munsiff accepted the contention of respondent and directed petitioner to remove the said obstruction from plaint B schedule. That was confirmed by the appellate court in C.M.A.No. 14 of 2009 which is under challenge in this Writ Petition. Learned counsel for petitioner/defendant contended that on facts and on point of law claim of easement by prescription raised by respondent has no legs to stand. According to the learned counsel plaint A schedule belonging to the respondent and plaint C schedule belonging to the petitioner originally belonged to Ayisumma and hence, being owner of both the tenements there was no question of Ayisumma prescribing any right of prescription over plaint B schedule. It is also contended by learned counsel that even the trial court was not very much impressed by the contention of the respondent as to the right of way since 35 years as pleaded. Learned counsel has referred me to paragraph No.12 of the order of the learned Munsiff where it is stated that evidence showed that plaint B schedule was formed by scooping of soil but, ofcourse report of the Advocate Commissioner was to the effect that the disputed plaint B schedule was being used as a way. Accepting that report learned Munsiff directed petitioner to remove the obstruction from plaint B schedule. Learned counsel for respondent contended that even though plaint A and C schedules belonging to the respondent and petitioner respectively WP(C) No.6365/2010 3 belonged to Ayisumma at one point of time, there was severance of tenements in the year 1980 as seen from Ext.B1, assignment deed and hence there is nothing wrong in Ayisumma claiming right of easement by prescription thereafter. Learned counsel states that Exts.C1 and C2 showed that there is a well formed way which was being used by the respondent and which has been obstructed by the petitioner. Learned counsel further states that the whole trouble started when respondent was about to put up a building in plaint A schedule for which he had to take vehicles carrying building materials to plaint A schedule through plaint B schedule. 2. The questions whether there is any way in existence as pleaded by the respondent and, he has prescribed a right of easement under Section 15 of the Easements Act or, as contended by petitioner plaint B schedule is not a way but is an ‘eda’ formed by scooping of soil over which the respondent has no right are to be resolved after a full-fledged trial. As of now report and sketch (Exts.C1 and C2) submitted by Advocate Commissioner show that there is a space on the west of plaint B schedule belonging to the petitioner, originating from the public road on the north and through which there could be access to plaint A schedule belonging to the respondent. Having regard to the grievance of the respondent that on account of obstruction on plaint B schedule he is not able to take building materials to his property and also taking into account Exts.C1 and C2, I consider that the matter can be resolved for the time being by making an interim arrangement ofcourse without prejudice to the right of the WP(C) No.6365/2010 4 contentions raised by the contestants before me. Respondent can be permitted to remove the obstruction in plaint B schedule as reported by the Advocate Commissioner and which exists above the ground level at his expenses for the time being so that he can use the said space as a way for access to plaint A schedule and for taking vehicles to plaint A schedule. That arrangement can continue until disposal of the suit and in case the suit is decided in favour of petitioner/defendant necessarily respondent/plaintiff has to restore the structures now seen on plaint B schedule and which he is permitted to remove. Resultantly, this Writ Petition is allowed in part and the order passed by the learned Munsiff on I.A.No.1717 of 2008 as confirmed by the appellate court in C.M.A.No.14 of 2009 is modified in the following lines: i. Respondent/plaintiff is permitted to remove at his expenses obstructions reported by the Advocate Commissioner from plaint B schedule above the ground level subject to the decision in the suit. ii. In case the suit is decided in favour of petitioner/defendant, respondent/plaintiff shall restore the structures removed from plaint B schedule at his expense. iii. Removal of structures and its restoration as above stated shall be done by the respondent in the presence of an Advocate Commissioner (preferably the Commissioner who has submitted reports in the case) and, the expenses for that shall be met by the respondent. iv. In case suit is decided in favour of the petitioner and as aforesaid respondent fails or refuses to restore the structures removed from plaint B WP(C) No.6365/2010 5 schedule it will be open to the petitioner to do so and realize the expenses from the respondent and his assets. v. In case suit is decided in favour of the petitioner/defendant as aforesaid even without amendment of written statement learned Munsiff shall issue appropriate directions in the decree directing petitioner to restore the condition of plaint B schedule to its original position and enabling the petitioner to do so in case respondent failed to do so. THOMAS P.JOSEPH, Judge. cks