IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).NO. 27630 OF 2010(O) -------------------------------------------- AGAINST CMA.18/2010 OF ADDL.DISTRICT COURT,KOTTAYAM OS.69/2010 OF MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER(S): ------------------------ DEVASSIA MATHAI, AGED 68 YEARS, S/O. LATE MATHAI, VADAKEMUKKADA HOUSE, VAKATHANAM, CHANGANASSERY TALUK. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): ------------------------- TOMY JOHN, S/O.LATE IYYO, RESIDING AT MUKKADA HOUSE, NALUNAKKAL.P.O., VAKATHANAM, CHANGASSERI, PIN-685535. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.27630 of 2010 ==================================== Dated this the 14th day of September, 2010 J U D G M E N T Dispute regarding right of access has brought the parties to this Court by this Writ Petition. Respondent sued petitioner in the court of learned Munsiff, Changanacherry in O.S. No.69 of 2010 for a decree for prohibitory injunction against petitioner putting up gate or other structures in the disputed C schedule way. He claimed that C schedule way is the only access to plaint A schedule belonging to him and that attempts are being made by petitioner to close the pathway to cause inconvenience to him. In the plaint he also stated that C schedule in its present form was made by the adjacent owners including his predecessor-in-interest by surrendering portions of their lands. He stated that pathway was in existence for about 50 years and in the present form for about 30 years. He filed application for temporary injunction as well. Though the plaint and other applications were (allegedly) prepared on 27.02.2010 as the learned counsel for respondent would put it since the Munsiff was on leave that day plaint could W.P(C) No.27630 of 2010 -: 2 :- not be presented on 27.02.2010. Learned counsel states that Sub Judge at Kottayam was also not available as he was taking part in some official function. 28.02.2010 happened to be a Sunday and hence the suit could be filed only on 01.03.2010. Suit was moved on the morning of that day and the matter was argued in the open court. Learned Munsiff took up the application for temporary injunction for orders. In the meantime a caveat was filed on behalf of petitioner at about 12.25 p.m. and being informed about that, learned Munsiff issued notice on the application for temporary injunction. But at the same time the application for issue of a commission was allowed. Commissioner inspected the property on 01.03.2010 at about 4.30 p.m. and found the pathway as pleaded by respondent. Commissioner also found a gate blocking access through the pathway which according to him was put up 3-4 hours before his inspection. Respondent filed Ext.P6, application on 03.03.2010 for an order of mandatory injunction to direct petitioner to remove the gate. Petitioner resisted that application contending that respondent has no right over the disputed way and that a gate which was in existence on the pathway was removed by the respondent and his men stealthily on the night of 28.02.2010 regarding which petitioner W.P(C) No.27630 of 2010 -: 3 :- had preferred Ext.B3, complaint to the local police. He did not dispute that thereafter he installed the present gate which the Advocate Commissioner mentioned in his report. Leaned Munsiff was not impressed by the case set up by respondent, found that though plaint and application for injunction were drafted on 27.02.1010 it was presented only on 01.03.2010 but without making any reference to the complaint respondent had preferred to the local police on 28.02.2010. Learned Munsiff was not inclined to grant mandatory injunction prayed for and accordingly dismissed that application. Respondent took up the matter in appeal. Learned Additional District Judge, impressed by the case pleaded by respondent found a prime facie case in favour of respondent and allowed the application vide Ext.P9, order. Petitioner has been directed to remove the obstruction caused to the disputed pathway. That order is under challenge in this Writ Petition. Learned counsel for petitioner contended that respondent has not come to the Court with clean hands. Learned counsel, apart from referring to the drafting of the plaint and application for injunction on 27.02.2010 and its filing only on 01.03.2010 stated that there is no mention in the plaint about even the complaint respondent preferred to the local police on W.P(C) No.27630 of 2010 -: 4 :- 28.02.2010. It is also contended that apart from producing the receipt (Ext.A3) for preferring that complaint respondent did not produce a copy of the complaint which if produced would have shown existence of a gate on the disputed way even as on 28.02.2010. Learned counsel also pointed out from Ext.B3, complaint preferred by petitioner before the local police on 28.2.2010 that in that complaint also petitioner has asserted that respondent and his men removed the exiting gate on the C schedule on 28.2.2010. A further contention learned counsel raised is that there is no mention in the plaint about the right claimed by the respondent over the disputed way. 2. So far as the right claimed by respondent is concerned it is not as if the respondent proceeds on the basis that the disputed way belongs to the petitioner so that respondent was required to plead any right over the disputed way. On the other hand respondent proceeds on the basis that the disputed pathway was in existence for about 50 years and in its present form it was made about 30 years back by the respective land owners including predecessor-in-interest of respondent surrendering portions of their property. In the light of that plea I am not impressed by the contention raised by learned counsel W.P(C) No.27630 of 2010 -: 5 :- for petitioner that since no specific right is plead by respondent, his application for mandatory injunction should fall to the ground. 3. On the question whether there was a gate on or before 28.02.2010 and it was allegedly removed by the respondent it is not possible to take any decision either way at this stage. It is true that in Ext.P6, application it is stated in paragraph 8 that there was some incident on 28.02.2010 as to the right of access through the disputed way, respondent preferred complaint to the local police, police came to be spot and directed petitioner not to put up the gate. It is also true that in Ext.B3 complaint preferred on 28.02.2010 petitioner on the other hand alleged that respondent and his men removed the existing gate. Learned counsel for respondent states that going by the number given for receipts acknowledging receipt of complaints preferred by petitioner and respondent, complaint of the petitioner was preferred only after complaint was preferred by the respondent. As I stated it required evidence to decide where there was in fact any gate in existence on or before 28.2.2010 and if so it was allegedly removed by the respondent. 4. As of now it would prima facie appear that respondent has no other means of access to the plaint A schedule. Though W.P(C) No.27630 of 2010 -: 6 :- learned counsel for petitioner contended that the adjacent properties belonged to the relatives of the petitioner and they have no complaint of non-access to their property which would indicate that there is other means of access to plaint A schedule as well I am not impressed by the said contention at this stage for more reasons than one. Firstly, though petitioner has a case that respondent has other means of access he also did not point out wherethrough that alternative way lies. It is contended by learned counsel that petitioner has filed application to depute an Advocate Commissioner to point out the alternative way. Concededly that application has not so far been ordered whatever be reason thereof and it was not brought on record that there was any alternative pathway. A further fact I have to take into consideration at this stage is that the Advocate Commissioner in Ext.P3, report has stated that there is no other alternative means of access to the petitioner. That observation of the Advocate Commissioner has to stand until it is proved otherwise. So far as the date of preparation of plaint, application for injunction and its presentation are concerned it would appear from the order of the learned Munsiff that much emphasis was given to the dates. It would prima facie appear that plaint and application for W.P(C) No.27630 of 2010 -: 7 :- prohibitory injunction were drafted on 27.02.2010 and admittedly presented in court only on 01.03.2010. But learned counsel for respondent has explained that it was intended to be moved on 27.02.2010 but since learned Munsiff was on leave and the Sub Judge, Kottayam was not available, plaint could not be presented on 27.02.2010 and the next working day was 01.03.2010 on which day suit was instituted. Since the plaint was allegedly drafted on 27.02.2010 though presented on 01.03.2010 averments regarding the incident that occurred on 28.02.2010 could not find a place in the plaint or application for injunction. Learned Additional District Judge has considered the relevant aspects of the matter and found that respondent is prima facie entitled to right of access through C schedule and the obstruction has to be removed. I do not find reason to interfere with the finding entered by the learned Additional District Judge. 5. At this stage petitioner has suggested that instead of removing the gate itself petitioner is prepared to keep the gate open round the clock to provide access to the respondent. Learned counsel states that no obstruction will be caused to the respondent and his men using plaint C schedule for access to plaint A schedule until disposal of the suit. Learned counsel for W.P(C) No.27630 of 2010 -: 8 :- respondent would contend that here is a case where mischief was committed by petitioner just 3-4 hours before the Advocate Commissioner inspected the property on 01.03.2010 at 4.30 p.m., i.e., after the institution of the suit and that has to be remedied. At this stage as I stated above, the court is only concerned with a prima case and its satisfaction and the perennial inconvenience that would be caused if obstruction is caused for access through plaint C schedule. That can be remedied by directing petitioner not to close the gate at any point of time and instead keep it open round the clock and directing petitioner not to cause any obstruction for the use of the way. Resultantly, this Writ Petition is disposed of in the following lines: (a) While no interference is required with the finding of learned Additional District Judge as to the right of respondent to have access to plaint A schedule through the disputed C schedule, the following directions are issued. W.P(C) No.27630 of 2010 -: 9 :- (i) Petitioner is directed not to lock or close the disputed gate and instead keep it open round the clock until disposal of the suit. (ii) Petitioner shall not cause any obstruction to the respondent or his men using plaint C schedule for access to the plaint A schedule until disposal of the suit. (iii) Petitioner is directed not to make any structures in the disputed C schedule until disposal of the suit. (b) It is made clear that if there is any violation of any of the directions made above it will be open to the respondent to seek assistance of the trial court for removal of the gate as ordered by the learned Additional District Judge. Trial court shall dispose of the suit untrammelled by any W.P(C) No.27630 of 2010 -: 10 :- observations contained in the order/judgment of the courts below or any observation made by this Court as to the merit of the case. THOMAS P. JOSEPH, JUDGE. vsv