IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP(C).No. 1666 of 2011(O) ------------------------- OS.862/2010 of I ADDL.MUNSIFF'S COURT, NEYYATTINKARA .................... PETITIONER: ----------------------- SOMAN NAIR, SANDHYA BHAVAN, NAIRYOOR, KUNNATHUKAL VILLAGE, KARAKONAM. BY ADVS. SRI.L.MOHANAN, SMT.LIGEY ANTONY. RESPONDENT(S): --------------------------- ANITHA KUMARI, ANITHA BHAVAN, EDAVILAKATHU KUNJU VEEDU, KUNNATHUKAL VILLAGE, KARAKONAM-695 504. BY ADV. SRI.D.KISHORE THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.1666/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.862/2010 OF THE MUNSIFF'S COURT, NEYYATTINKARA. P2: COPY OF I.A.6387/2010. P3: COPY OF AN EX-PARTE ORDER DTD. 19/08/2010. P4: COPY OF EXT.C1 REPORT C1 (A) ROUGH SKETCH. P5: COPY OF THE OBJECTION. P6: COPY OF C2 REPORT AND C2(A) ROUGH PLAN OF THE COMMISSIONER. P7: COPY OF THE C3 REPORT AND C3(A) ROUGH SKETCH. P8: COPY OF THE I.A.1522/2011. P9: COPY OF THE ORDER IN I.A.1522/2011 DTD. 7/04/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1666 of 2011 --------------------------------------- Dated this 21st day of July, 2011 JUDGMENT First defendant in O.S.No.862 of 2010 of the Court of learned Additional Munsiff-I, Neyyattinkara is the petitioner before me challenging Ext.P9, order dated 07.04.2011 on I.A.No.1522 of 2011. The dispute concerned plaint C schedule pathway which according to the respondent/plaintiff, herself and her predecessor-in-interest were using for the last more than 25 years and over which respondent claimed right as per a release deed of the year 1998. She also contended that herself and predecessor-in-interest were using the said way as of right without obstruction for more than 25 years and that for access to the plaint A schedule for herself and family, she has no other means of access. She originally sued petitioner and defendants 2 and 3 for a decree for prohibitory injunction to restrain them from obstructing her user of plaint C schedule described as a way having width of 3 meters and length of about 100meters originating from the public road on the west and reaching plaint A schedule towards the east. It is the case of respondent that the said way is going along the northern side of plaint B schedule O.P(C).No.1666 of 2011 -: 2 :- items 1 to 3 belonging to the petitioner and respondents 2 and 3, respectively (I am told that in between plaint B schedule item No.2 and plaint A schedule there is a strip of land belonging to two others who have been impleaded in the suit as additional defendants 5 and 6. I am also told that the plaint was amended to incorporate a prayer for declaration of right of easement by prescription). The suit was instituted on 19.08.2010 and the Advocate Commissioner inspected the property same day (Ext.P4 is the report). In that report, the Advocate Commissioner reported that there is a way along the northern side of plaint B schedule items 2 and 3 reaching plaint A schedule which has an oldness of about 20 years. The Commissioner also reported that towards the entry point where C schedule touches the road on the northern side (ie on the north of B schedule item 1) there was clear indication of a way but, towards east of that portion (on the north of plaint B schedule,item No.1 belonging to the petitioner) plaint C schedule was found disturbed recently by putting earth over that portion. The Commissioner stated that at that portion rubber trees were found fallen down. The Advocate Commissioner again inspected the property on 20.09.2010 and submitted Ext.P6, report (Exts.C2 in the court below). There was a further inspection by the Commissioner consequent to which he submitted Ext.P7, report. While so, respondent filed I.A.No.1522 O.P(C).No.1666 of 2011 -: 3 :- of 2011 before the trial court to restore the position of the disputed pathway as on the date of suit. That application was resisted by petitioner on various grounds including that there is no such pathway as described in plaint C schedule and that petitioner had not destroyed any portion of the pathway. Learned Munsiff allowed I.A.No.1522 of 2011 as per order dated April 07, 2011. That order is under challenge in this proceeding. 2. Learned counsel for petitioner contended that a comparison of Exts.P4 and P6, reports would show the falsity of claim of respondent. It is pointed out by learned counsel that the Advocate Commissioner has, without notice to the petitioner inspected the property and submitted Ext.P4, report which refers to the existence of plaint C schedule way and the alleged obstruction. Ext.P6, report submitted by the Advocate Commissioner would show that there was no possibility of any such way being in existence even at the time Advocate Commissioner inspected the property on 19.08.2010. Learned counsel pointed out that in Ext.P6, report Advocate Commissioner has pointed out that there are pits along the disputed portion of the pathway on the northern side of plaint B schedule item No.1 formed by the uprooting of rubber trees from that portion of the property. Learned counsel submitted that since rubber trees were old and unyielding the same were given O.P(C).No.1666 of 2011 -: 4 :- to one Chandrangathan for slaughter tapping and he has cut and uprooted the rubber trees using JCB. It is pointed out from Ext.P6, report that respondent has an alternative access towards east from plaint A schedule. It is also pointed out from Ext.P6, report that the Advocate Commissioner has reported about fencing on all sides of the property of petitioner which was found pretty old. It is pointed out that it was without deciding the application for prohibitory injunction that learned Munsiff allowed I.A.No.1522 of 2011 and passed Ext.P9, order directing petitioners to restore the pathway which is not in existence. 3. Learned counsel for respondent contended that Ext.P4, report revealed existence of the way and attempt of petitioner to obstruct use of that pathway by putting earth at a portion of plaint C schedule way towards north of plaint B schedule item No.1. It is pointed out by learned counsel that the fence referred to by the Advocate Commissioner in Ext.P6, report is on the boundary of property belonging to the wife of petitioner. It is also submitted that so far as the alternative way towards east is concerned, even Ext.P6, report and plan would show that towards the eastern extremity, it passes through the courtyard of other persons over which respondent cannot claim access as of right and hence that cannot be taken as an alternative way for the respondent. O.P(C).No.1666 of 2011 -: 5 :- 4. Now, that the matter is pending consideration before learned Munsiff it is not necessary for me to go into the disputed questions. What is required is only to refer to the reports as it is, the correctness or otherwise of which parties are entitled to prove in the trial court. Going by Ext.P4, it would appear that on the date of inspection on 19.08.2010 there was a way originating from the road on the western side of B schedule item No.1, going along the northern side of B schedule items towards east and reaching plaint A schedule. Towards the northern side of plaint B schedule item Nos.2 and 3 (which according to the petitioner belonged to those who supported the respondent) there was a clear way as reported by the Advocate Commissioner and having oldness of about 20 years. The dispute is regarding northern portion of plaint B schedule item No.1 belonging to the petitioner. There also, Advocate Commissioner has reported that at the point where the disputed C schedule touched the road on the further west there was clear indication of a way but, towards east of that portion Commissioner found earth put on the disputed way with rubber trees having fallen down there. Commissioner reported that on account of that, he was not able to ascertain whether at that portion there was a way (in continuation of the way towards east up to the plaint A schedule). True, in Ext.P6, report and the accompanying sketch, O.P(C).No.1666 of 2011 -: 6 :- Commissioner has shown existence of pits along the disputed portion of the way on the northern side of plaint B schedule item No.1. It is yet to be decided whether those pits were dug after the first inspection of Commissioner or, whether it existed even before that, and assuming so, it was dug on the existing way. 5. So far as the alternative way pleaded by the petitioner is concerned, no doubt towards east of plaint A schedule there appears to be a way in existence as reported in Exts.P6 and P7 and the Commissioner has noted a few steps at the point of entry from plaint A schedule to the alternative way but, it is seen that towards further east, the said way goes through the courtyard of certain others. Whether, petitioner has a right of access through that way and assuming so, what bearing it has on her claim over plaint C schedule is a matter which the trial court has to decide. 6. Now some arrangement has to be made for the respondent to gain access to the plaint A schedule. Learned counsel for respondent submitted that the level of plaint C schedule on the north of B schedule item No.1 is raised in such a way that access through that portion is not possible and that exactly is the reason why learned Munsiff has passed Ext.P9, order. Having heard learned counsel on both sides what is required is to permit the respondent (without prejudice to the contentions both sides have raised) use plaint C schedule until O.P(C).No.1666 of 2011 -: 7 :- disposal of the suit and to facilitate that, the level of the space having width of 3 feet along the northern portion of plaint B schedule item No.1 has to be made at the same level of the remaining portion of plaint C schedule lying towards east (along northern side of plaint B schedule item Nos.2 and 3). Similarly, the western portion of the disputed portion of C schedule has to be made suitable for access from the public road on the further west. Resultantly this original petition is disposed of in the following lines: (i) Respondent, without prejudice to the contentions both sides have raised in the suit, is permitted to use the disputed C schedule way originating from the public road on the western side and reaching plaint A schedule (along the northern of plaint B schedule items 1 to 3). (ii) Petitioner, for the said purpose is directed to make the disputed northern portion of plaint B schedule item No.1 (in continuation with the remaining portion of C schedule and at a width of three feet) at the same level as the remaining portion of plaint C schedule (situated on the north of plaint B schedule item Nos.2 and 3). (iii) Petitioner shall also make the western portion of the dispute C schedule (ie the north- western portion of plaint B schedule item No.1) in such a way that entry from the public road on the O.P(C).No.1666 of 2011 -: 8 :- west to the disputed C schedule is made convenient. (iv) The above directions will substitute Ext.P9, order passed by the learned Munsiff and will remain in force until disposal of the suit. (v) Petitioner shall carry out the said work within two weeks from this day failing which respondent can get it done through the court below. (vi) Trial court shall dispose of the suit untrammelled by the finding entered in Ext.P9, order or any direction contained in this judgment which, it is made clear is only to facilitate access for the respondent to the plaint A schedule from the public road on the western side until disposal of the suit. (vii) Parties can agitate the contentions they have raised before the trial court as it arise from their respective pleadings. (viii) Parties may request learned Munsiff to expedite trial and disposal of the suit and if any such request is made learned Munsiff shall consider the request of course, having regard to the volume of work of that Court and priority for disposal of older cases and pass appropriate orders having regard to the grievance of parties. (THOMAS P JOSEPH, JUDGE) Sbna/-