IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 12766 of 2009(O) -------------------------- CMA.11/2008 of SUB COURT, MUVATTUPUZHA OS.276/2008 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONER(S): --------------------------- VIJAYAN P.G., S/O.GOVINDAN, AGED 53 YEARS, POOVELIPUTHENPURAYIL, MEMUGHAN KARA, MANEED VILLAGE. BY ADV. MR.BIJU ABRAHAM RESPONDENT(S): ---------------------------- 1. MOHAN, AGED 48 YEARS, S/O.GOVINDAN, POOVELIPUTHENPURAYIL, MEMUGHAM KARA, MANEED VILLAGE. 2. RAMANI, AGED 45 YEARS, W/O.MOHANAN, POOVELIPUTHENPURAYIL, MEMUGHAM KARA, MANEED VILLAGE. R1 & R2 BY ADVS. MR.H.B.SHENOY, MR.B.ASHOK SHENOY, SMT.LAKSHMI B.SHENOY, MR.ABU MATHEW, MR.SOBHAN GEORGE, MR.ROY THOMAS (MUVATTUPUZHA), MR.THOMAS P.MAKIL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.12766 OF 2009 (O) ----------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i) to issue a writ of mandamus or any other appropriate writ, order or directions setting aside Ext.P5 judgment of the lower appellate court by restoring Ext.P4 injunction order as against the respondent. ii) to issue any other appropriate writ, order or directions as this Honourable Court deem fit on the facts and in the circumstances of the case and allow this petition with cost. 2. Petitioner is the plaintiff in O.S.No.276/2008 on the file of the Munsiff Court, Muvattupuzha, in which, he sought a permanent prohibitory injunction against the defendants from blocking the 'B' schedule pathway and also causing any obstruction to his enjoyment to that pathway. He has also sought for a mandatory injunction restraining the defendants WPC.12766/09 2 from locking a gate installed in the 'B' schedule pathway. Along with the suit, the plaintiff moved an application for an interim injunction to restrain the defendants from blocking 'B' schedule pathway and from locking the gate installed in that property. The respondents/defendants in the suit, entering appearance, filed objections to that application. The learned Munsiff, after hearing both sides and collecting a report and plan from an Advocate Commissioner passed Ext.P4 order restraining the respondents from blocking 'B' schedule pathway obstructing the petitioner's use of that pathway and locking the gate installed in that way. Aggrieved by Ext.P4 order, the respondents preferred an appeal before the Sub Judge, Muvattupuzha. The learned Sub Judge, after hearing both sides, passed Ext.P5 order vacating the order of injunction. Petitioner/plaintiff has approached this Court seeking its supervisory jurisdiction challenging Ext.P5 order as improper and not sustainable under law. 3. I heard the counsel on both sides. An objection was raised by the learned counsel for the respondents relying on Yeshwant Sakhalkar and another v. Hirabat kamat mhamai and another ((2004) 6 SCC 71), that the order WPC.12766/09 3 passed by the appellate court in vacating the order of injunction is not liable to be interfered with by this Court exercising its supervisory jurisdiction vested under Article 227 of the Constitution of India. After perusing the orders of both the courts below and also the submissions made by the respondents counsel at the bar, I find that in the facts and circumstances of the case, the interference made by the appellate court vacating the order of injunction passed by the court below was not proper and correct and it amounts to manifestation of injustice. That being so, I find that this is a fit case where the exercise of supervisory jurisdiction of this Court is warranted to meet the ends of justice invoking its powers under Article 227 of the Constitution of India. Perusing Ext.P5 order, it is noticed, the appellate court, prima facie, found no merit in the submissions of the petitioner/plaintiff for injunction, for the reason he has not set up in the plea in the application of injunction, the right which he claimed over 'B' schedule pathway. There was no specific averment in the plaint as to whether he claimed the ownership, easement by prescription or easement by necessity and that, according to the learned Sub Judge is a vital circumstance disentitling him from getting the relief prayed WPC.12766/09 4 for in the interlocutory application. The right of user which has not matured into the right of easement by prescription is also a right to be protected and for protecting that right a party can approach a court of law and seek an order of injunction. In this context, it is proper and profitable to take note of the observations of this Court in Krishna Pillai v. Kunjupillai (1990 (1) KLT 136), which reads thus: “Even an inchoate right which is at the stage of user alone without having matured into a prescriptive right is a right that will be protected by a court of law in a deserving case against invasion within the limits of law just like the possessory title of a person who has not acquired full right. That right could be put forward as a sword as well as shield within permissible limits.” So, considering an application for interim injunction, the court need not be labour much as to whether the plaintiff/petitioner who seeks the injunction has established a prescriptive right of easement or easement by grant or ownership over the pathway. 4. Admittedly, 'B' schedule pathway is in existence and both 'A' and 'B' schedule properties of the plaintiff and also WPC.12766/09 5 the defendants are lying as touching that pathway. The pathway leads to the property of the defendants only after it passes beside the property of the plaintiff. Resisting the application for injunction, the respondents have contended that the first respondent had purchased 3.5 cents of property, the portion where the pathway commences from the public road, under Ext.B1 sale deed, and he had also taken agreement of sale from the neighbouring owners on both sides of the pathway for its widening. Their existed a pathway, even before the agreement of sale was taken from the neighbouring owners, is prima facie evident from the case advanced by the defendants. The crucial question emerging then for consideration is whether the plaintiff has been using the way as of right, whatever be the claim for the basis of such right whether it be ownership, easement by grant, easement by prescription or of long user. The report produced by the Commissioner and also the materials tendered in the case would prima facie indicate the plaintiff is exercising the right over the pathway for enjoyment of 'A' schedule property, and that be so, statusquo over the subject matter 'B' schedule pathway has to be maintained till an adjudication of the disputes arising in the suit is made, after affording reasonable WPC.12766/09 6 opportunity to both sides to lead evidence in support of their respective case. In this connection, it is also pertinent to note that the defendants have no dispute that the portion of the property taken by him under Ext.B1 sale deed for the purpose of the pathway commencing from the public road, as of right, is now enjoyed by the plaintiff and also others; and, hence he has installed a gate only at the southern side of the 3.5 cents of property. Other than producing the agreement of sale, covered by Ext.B3, the defendants have not produced any documents to show that they have exclusive title and possession over the entire extent of 'B' schedule pathway commencing from the gate upto their property. That is also a circumstance to be taken into account in ordering status quo over the subject matter. Locking of the gate by the defendants during the pendency of the suit is likely to cause injury to the petitioner as the entry to the pathway leading to his house in that case will be obstructed. So much so, the learned Munsiff was justified in passing an order of injunction restraining the defendants from locking up the gate. Having regard to the totality of the facts and circumstances involved in the case and the submissions made, I am satisfied that the partitioner/plaintiff had made out a prima facie case for the WPC.12766/09 7 injunction applied for and the order passed by the trial court Judge was not liable to be interfered with by the learned Sub Judge in appeal. So, in reversal of the order passed by the learned Sub Judge, the order of injunction passed by the learned Munsiff is restored and the trial court is directed to take expeditious steps for trial of the case giving it top priority for hearing. Writ petition is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009