IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 OP(C).No. 2105 of 2011(O) -------------------------------------- CMA.NO. 26/2010 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.NO. 123/2010 of MUSNIFF COURT, ADOOR .................... PETITIONER ---------------------- 1. PANDALAM THEKKEKARA GRAMA PANCHAYATH, REP.BY ITS SECRETARY, SHRI M.K.RADHAKRISHNAN NAIR S/O.MADHAVAN NAIR, AGED 53 YEARS, R/A.KAVIYOTE KAUSTHABHAM,MELODE P.O.,(VIA)ADOOR, PATHANAMTHITTA, PIN-691 525 2. K.THANKAPPAN, PRESIDENT (FORMER) PANDALAM THEKKEKKARA GRAMA PANCHAYATH, THATTAYIL P.O.,ADOOR TALUK, PIN-691 525 3. SUDHAKARAN, MEMBER (FORMER, WARD NO.3 PANDALAM THEKKEKKARA GRAMA PANCHAYATH NOW R/A.SUJA BHAVANAM,PUDUKOTTAKKAL LAKSHAMVEEDU COLONY, PADUKOTTAKKAL MURI, PANDALAM THEKKEKKARA VILLAGE, THATTAYIL P.O.,ADOOR TALUK,PIN-691 525 4. RAJENDRA PRASAD,AGED 42 YEARS, S/O.SIVARAMA PILLAI, THEKKE CHARUVILAYIL VEEDU, PUDUKOTTAKAL MURI, PANDALAM THEKKEKKARA VILLAGE,THATTAYIL P.O., ADOOR TALUK,PIN-691 525 5. SMT.SREEDEVI, AGED 50 YEARS, D/O.BHASKARA KURUP @ BHASI, KANAKKAPILLETHE VEEDU OF PADUKOTTAKAL MURI, PANDALAM THEKKEKKARA VILLAGE, THATTAYIL P.O.,ADOOR TALUK,PIN-691 525 6. A.N.MATHEW,S/O.ALEXANDER, AGED 55 YEARS,MANKUZHITHARAYIL VEEDU, MANKUZHI, MALLIKAMURI PANDALAM THEKKEKKARA VILLAGE THATTAYIL P.O.,ADOOR TALUK,PIN-691 525 BY ADV. SRI.N.UNNIKRISHNAN 2/- -2- OP(C)NO.2105/2011 RESPONDENT(S): --------------------------- 1. K.A.PAPPU,S/O.AYYAPPAN, AGED 60 YEARS, ANIL BHAVANAM, PADUKOTTAKKAL LAKSHAMVEEDU COLONY PADUKOTTAKKAL MURI,PANDALAM, THEKKEKKARA VILLAGE ADOOR TALUK,PIN-691 525,THATTAYIL P.O. 2. M.VASUKUTTAN,S/O.CHANDRAN, AGED 46 YEARS LAVANYA BHAVANAM VEEDU, PADUKOTTAKKAL LAKSHAMVEEDU COLONY PADUKOTTAKKAL MURI,PANDALAM, THEKKEKKARA VILLAGE ADOOR TALUK,PIN-691 525,THATTAYIL P.O. 3. SMT.MONEY,D/O.THEVI, AGED 50 YEARS, RADHAMANI BHAVANAM, PADUKOTTAKKAL LAKSHAMVEEDU COLONY PADUKOTTAKKAL MURI,PANDALAM, THEKKEKKARA VILLAGE ADOOR TALUK,PIN-691 525,THATTAYIL P.O. 4. SMT.JANAKI,D/O.KURUMPA AYYAPPAN, AGED 44 YEARS, PUTHENVEETTIL PADUKOTTAKKAL LAKSHAMVEEDU COLONY PADUKOTTAKKAL MURI,PANDALAM, THEKKEKKARA VILLAGE ADOOR TALUK,PIN-691 525,THATTAYIL P.O. 5. V.K.BHARATHI, W/O.KANTAN,AGED 75 YEARS, REMIYA NIVAS, PADUKOTTAKKAL LAKSHAMVEEDU COLONY PADUKOTTAKKAL MURI,PANDALAM, THEKKEKKARA VILLAGE ADOOR TALUK,PIN-691 525,THATTAYIL P.O. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2105/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.123/2010 P2 COPY OF THE IA 494/2010 FILED BY RESPONDENTS P3 COPY OF THE OBJECTION STATEMENT DATED 29/3/2010 P4 COPY OF THE COMMISSION REPORT DATED 20/3/2010 ALONG WITH ROUGH SKETCH AND MAHAZER. P5 COPY OF THE APPROVED SKETCH OF PROPERTY. P6 COPY OF the SEVEN PHOTOGRAPHS OF THE PROPOSED SITE AND ADJACENT AREA P7 COPY OF THE ORDER IN IA 494/2010 IN OS 123/2010 OF THE MUNSIFF COURT, ADOOR. P8 COPY O F THE APPEAL CMA NO.26/2010 FILED BEFORE THE DISTRICT COURT, PATHANAMTHITTA. P9 COPY OF THE ORDER IN CMA 26/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2105 of 2011 -------------------------------------- Dated this the 4th day of July, 2011. JUDGMENT Petitioners are the defendants in O.S.No.123 of 2010 of the court of learned Munsiff, Adoor. That is a suit filed by the respondents for a decree for prohibitory injunction to restrain petitioners from putting up structures in the plaint B schedule, pathway which, they allege is a road having a width of six metres and length of 60 metres originating from Kerukuzhy – Pulikulathupady road and terminating at the anganwady No.52. It is the case of respondents that they have been used the said pathway for ingress and egress from their properties time immemorial and that they have no other access. While so, they learnt that petitioners are taking steps to construct a building for marketing the goods of kudumbasree. According to the respondents if the building is constructed in the proposed cite that would shut out their access to the plaint A schedule items and hence the suit. Petitioners denied the claim of respondents that plaint B schedule is a road. According to them it is the property of Panchayat where the anganwady is constructed. It is contended that respondents have other means of access to plaint A schedule properties. It is the further contention of petitioners that the proposed construction will be made only after leaving a space at a width of 5 ½ feet which could be used as a road if at all the contention of respondents is accepted. Learned Munsiff considered the application for temporary injunction and after referring to the relevant records came to the conclusion that there is a prima facie case for the respondents, OP(C) No.2105/2011 2 balance of convenience is in their favour and that if injunction is not granted, that will cause irreparable injury and loss to respondents. That order was confirmed by learned Additional District Judge, Pathanamthitta in C.M.A.No.26 of 2010. The said judgment is under challenge. 2. Learned counsel has contended that the suit itself is not maintainable as statutory notice is not served on the Panchayat. It is also contended that the suit is bad for non-joinder of parties since the State Government is not made party. If respondents have a case that they are holders of pattayam issued by the State Government, they should have made the State Government as a party to the suit. It is pointed out that even as per exparte report of the Advocate Commissioner, respondents have an alternative access to their property. 3. Having regard to the circumstances, I do not think it necessary to consider the contentious issues in this Original Petition filed under Article 227 of the Constitution. Prima facie it is seen from the report of the Advocate Commissioner that the alternative way pointed out by petitioners could not be used by the respondents during rainy season. Whether the said report is correct or not, whether plaint B schedule is a road and whether the property where the anganwady is constructed is Panchayat property are matters which the trial court has to decide. I am not inclined to think at this stage that this Court should interfere in the matter in exercise of its jurisdiction under Article 227 of the Constitution. OP(C) No.2105/2011 3 4. Learned counsel has submitted that the Panchayat has started with construction of building in connection with the marketing centre for goods produced by kudumbasree making use of the funds made available to it by the Government and if disposal of the suit is delayed, the funds allotted will be lapsed and the beneficiaries of the plan will be put to irreparable injury and loss. Having regard to that, the matter requires consideration by the learned Munsiff at the earliest. Hence it is only appropriate that the learned Munsiff disposed of the suit if pre-trial steps are over, at the earliest. Resultantly this Original Petition is disposed of directing the learned Munsiff, Adoor to expedite trial and disposal of O.S.No.123 of 2010. Learned Munsiff shall dispose of the suit untrammelled by any observation contained in the impugned order/judgment. THOMAS P.JOSEPH, Judge. cks