IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 WP(C).No. 33856 of 2008(E) -------------------------------------- OS.218/2008 of MUNSIFF COURT, TIRUR ......................... PETITIONER(S): --------------------- PUTHUKKUDI MOHAMMED KOYA @ KOYA HAJI, S/O.KUNHALAN HAJI, P.O.PONMUNDAM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRIC.M.MOHAMMED IQUABAL, SENIOR ADVOCATE. RESPONDENT(S): ------------------------ 1. THIRUNILATH AYISHA, W/O.KOYAMU HAJI, P.O.PONMUNDAM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. THIRUNILATH MOIDEENKUTTY, S/O. KUNHEEN, P.O.PONMUNDAM, TIRUR TALUK MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33856 of 2008(E) A P P E N D I X EXHIBITS FOR THE PETITIONER :- EXT.P1 : COPY OF THE PLAINT IN O.S.218/2008 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 28.7.2008. EXT.P2 : COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.NO.218/2008 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 18.9.2008. EXT.P3 : COPY OF I.A.1562/2008 IN O.S.NO.218/2008 ON the FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 28.7.2008. EXT.P4 : COPY OF THE AFFIDAVIT IN SUPPORT OF I.A.1830/2008 IN O.S.218/2008 ON THE FILE OF THE COURT OF THE MUNSIFF OF TIRUR DATED 27.8.2008. EXT.P5 : COPY OF THE COMMISSIONER'S REPORT DATED 18.8.2008. EXT.P6 : COPY OF THE ORDER OF the COURT OF the MUNSIFF OF TIRUR IN I.A.1562/2008 AND IA 1830/08, DATED 18.9.2008. EXT.P7 : COPY OF THE ORDER OF the SUB COURT, TIRUR IN CMA 28/08 AND CMA 29/08, DATED 12.11.2008. EXHIBITS FOR THE RESPONDENTS : NIL. //TRUE COPY// P.A.TO JUDGE ami S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.33856 OF 2008 (E) ----------------------------------- Dated this the 27th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for the records in O.S.No.218/2008 on the file of the Munsiff Court, Tirur. ii. to pass an order setting aside Ext.P6 and Ext.P7 orders. iii. to pass an order dismissing Ext.P3 and Ext.P4 applications. iv. to pass an order staying all further proceedings in pursuance to Ext.P6 and Ext.P7 orders pending disposal of this writ petition and v. to pass any other appropriate writ, order or direction which this Honourable Court may deem fit to issue and the petitioner may pray from time to time. 2. Petitioner is the defendant in O.S.No.218/2008 on the file of the Munsiff Court, Tirur. Suit is one for injunction, both WPC.33856/08 2 mandatory and prohibitory, and the respondents are the plaintiffs in the suit. The respondents claimed a right of way through the property of the defendant alleging that they have prescribed right of easement over that pathway. At the time of filing of the suit, apart from seeking a decree of prohibitory injunction restraining the defendant from interfering with their enjoyment over the pathway, the plaintiffs also sought for a decree of mandatory injunction alleging that some steps had been constructed beside the pathway to obstruct their use and enjoyment of the pathway. The defendants resisted the suit claim and also the application for interim injunction moved by the plaintiffs. A Commissioner appointed by the court conducted a local inspection and filed a report and rough sketch. After the visit of the Commissioner, the plaintiffs moved another application seeking an interim mandatory injunction alleging that the pathway had been closed by the defendants by constructing a wall and sought for its removal by orders of the court. The Advocate Commissioner deputed earlier was directed to conduct an inspection and after conducting such inspection, he filed a WPC.33856/08 3 report which prima facie indicated that after his first visit, some constructions had been made blocking the pathway. The learned Munsiff, after hearing both sides allowed both the applications moved by the plaintiffs directing the defendant to remove the constructions put up blocking the pathway. Aggrieved by the orders, the defendant preferred two appeals before the Sub Court, Tirur. The learned Sub Judge, after hearing both parties and appreciating the materials tendered for the purpose of the interlocutory applications, concurred with the views taken by the learned Munsiff, and upholding the orders passed dismissed the appeals. The writ petition has been filed challenging the propriety and correctness of the judgment rendered by the learned Sub Judge invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. After hearing the counsel on both sides at length and taking note of the facts and circumstances presented with reference to the impugned judgment rendered by the learned Sub Judge and also the WPC.33856/08 4 common order passed by the learned Munsiff, I find this is not a fit case where this Court in its visitorial jurisdiction examine the materials and appreciate the questions involved to test whether the concurrent findings of fact entered by the inferior courts are correct on the materials placed in the case. The two inferior courts have concurrently held that the plaintiffs are entitled to the discretionary relief of interim injunction and interim mandatory injunction prima facie satisfied that there was interference over the pathway by the defendant and such interference was made after the lis was placed for consideration before the court. When that be so, and where no compelling circumstances are presented to show that the views taken by the inferior courts could not have been formed on the materials placed, this Court will be slow in examining the findings with reference to the materials produced. So, without expressing any opinion on the merits of the case, I find the writ petition challenging the orders of the inferior courts cannot be entertained, and at any rate a disposal on merits of the case on such disputed questions at this stage from this Court is impermissible. Whether the plaintiffs have WPC.33856/08 5 a right of prescriptive easement over the pathway and also their entitlement to get the reliefs claimed in the suit necessarily and inevitably, has to be decided after affording reasonable opportunity to both sides to lead evidence in the case. The learned Munsiff is directed to dispose the suit as expeditiously as possible, at any rate within a period of six months from the date of passing of this judgment. Writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp