IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 FAO.No. 103 of 2011() --------------------- AGAINST THE ORDER DATED 25/02/2011 IN IA 454/2011 IN AS.12/2011 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT/RESPONDENT IN THE LOWER APPELLATE --------------------------------------------------------------- ABU,S/O.PUNNILATH KUNJU AMMU, ONACHAMMAVU DESOM,PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.M.C.GOPI RESPONDENT(S): PETITIONER: ------------------------------------------- 1. SANKUNNI,S/O.PATTALI KUNJIPAPPU, ONACHAMMAVU DESOM,PARAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK,THRISSUR DISTRICT, PIN 680 001. 2. RAMAKRISHNAN,S/O.PATTALI KUNIPAPPU, ONACHAMMAVU DESOM,PARAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK,THRISSUR DISTRICT, PIN 680 001. ADV. SRI.K.G.BALASUBRAMANIAN FOR R1,R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 103 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2011. JUDGMENT Aggrieved by the order dated 25.2.2011 in I.A. 454 of 2011 in A.S. 12 of 2011 before the Sub court, Irinjalakuda, the respondent before the court below comes up in appeal. 2. The suit was instituted by the respondents herein for a mandatory injunction in respect of a way which is alleged to have been trespassed upon by the first defendant, who is also alleged to have prevented the plaintiffs from using the same. 3. The defendants resisted the suit by pointing out that there was no such way as alleged in the plaint and the plaintiffs had never used any portion either as a way or for any other purpose. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of F.A.O.103/2011. 2 P.W.1 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants examined D.W.1 and had Ext.B1 marked. The trial court on an appreciation of the evidence available in the case found that the plaintiffs had failed to establish the claim and dismissed the suit. 5. That made the plaintiffs in the suit, who are the respondents herein, to carry the matter in appeal as A.S. 12 of 2011 before the Sub Court, Irinjalakuda. It appears that the respondents herein moved I.A.454 of 2011 for an interim order seeking to have the pathway maintained during the pendency of the appeal. After hearing both sides, the impugned order was passed. 6. Learned counsel appearing for the appellant contended that the court below was not justified in ordering to maintain the pathway, which, according to the learned counsel, is not in existence at all. It is also pointed out that there was no evidence adduced by the plaintiffs in support of their case and that had persuaded the trial court to dismiss the suit. Learned counsel points out that under the F.A.O.103/2011. 3 guise of the order now obtained, the plaintiffs are trying to trespass into the property and cut open a pathway. 7. Learned counsel appearing for the respondents pointed out that the trial court had completely overlooked Exts. A1 and A2, which are the judgments in O.S.26 of 2002 and in the appeal therefrom, i.e. A.S.8 of 2005, which was a suit filed by the first defendant in the present suit seeking prohibitory injunction against the plaintiffs in the present suit. That suit was decreed against the first defendant finding existence of the way. Learned counsel pointed out that whatever that be, all that the lower appellate court has now done is only to direct the respondents before the lower appellate not to destroy plaint B schedule pathway which was found to be in existence in the earlier suit and also not to obstruct its use by the plaintiffs. 8. The finding of the trial court regarding the pathway and its use by the plaintiffs is challenged in appeal. The appellate court after hearing both sides found that a prima facie case exists in favour of the plaintiffs and balance F.A.O.103/2011. 4 of convenience is also in their favour. Though not adverted to in the order of the lower appellate court, the lower appellate court must have perused Exts.A1 and A2 and might have been carried away by the fact that in the judgments evidenced by Exts.A1 and A2 the court found in the earlier proceedings that there does exist a way and its use by the plaintiffs herein. It is true that the judgment and decree in O.S.26 of 2002 has not become final. Learned counsel for the appellant pointed out that the matter is pending in Second Appeal. But as already noticed the lower appellate court was only considering an interlocutory application and if it felt that prima facie there is a way in existence, use of which has been obstructed by the defendants in the suit, it could not be found fault with. It needs to be noticed that the order was passed after hearing both sides. 9. The main contention of the learned counsel for the appellant is that in the present suit none of the alleged mediators was examined and there was no independent F.A.O.103/2011. 5 evidence to show that there was a way in existence as alleged in the plaint. 10. As to whether the trial court was justified in ignoring Exts.A1 and A2 etc., and other evidence adduced in the case is not a matter for this court to consider in this proceedings. Suffice to say that there is nothing to show that the lower appellate court has erred in any manner in passing the impugned order. It is true, as already observed, probably the finding was on the basis of Exts.A1 and A2. It also needs to be noticed that those judgments have not become final. But if as a matter of fact the court below felt that unless an interim order is granted, the subject matter of the lis could not be preserved and the rights of the appellants before the court below would be affected. It could not be said that the findings are wrong. At any rate, no prejudice is caused to the appellant before this court. All that the lower appellate court was directed is to maintain the pathway and its use by the appellants before the said court. F.A.O.103/2011. 6 11. It is pointed out that subsequently a petition for police aid has also been filed by the appellants. That is a matter for that court to consider. However, as noticed, this court finds no ground to interfere with the interlocutory order passed by the lower appellate court while considering the appeal at the time of admission. 12. Considering the nature of disputes involved in the suit, it is only appropriate to direct the lower appellate court to dispose of the appeal as expeditiously as possible at any rate within a period of three months from the date of receipt of a copy of this judgment. This appeal is dismissed subject to the above observation. P. BHAVADASAN, JUDGE sb.