IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 OP(C).NO. 3069 OF 2011(O) --------------------------------------- CMA.2/2011 OF SUB COURT,NEYYATTINKARA PETITIONERS: --------------------- 1. VISWANATHA PANICKER VIDYADHARAN, SREEPOORAM VEEDU, EDAVAL DESOM,KEEZHAROOR VILLAGE. 2. NISHA, D/O.REMANY, SREEPOORNAM VEEDU, EDAVAL DESOM, KEEZHAROOR VILLAGE. BY ADV. SRI.D.KISHORE RESPONDENT(S): APPELLANTS/PETITIONERS/PLAINTIFFS ------------------------------------------------------------------------------------ 1. SUDHAKARAN MOHANAN, GEETHA BHAVAN, CHILAMPARA DESOM, KEEZHAROOR VILLAGE, PIN 695130. 2. KOCHU PARVATHY SUGANDHA KUMARI, JAYA VILAS, MANNADIKONAM, MARANALLOOR DESOM, MARANALLOOR VILLAGE, PIN 695132. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.(C) NO.3069 OF 2011 APPENDIX PETITIONER(S) EXHIBITS EXHIBITP-P1. TRUE COPY OF THE PLAINT IN O.S.535/10. EXHIBIT-P2. TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.535/10. EXHIBIT-P3. TRUE COPY OF THE I.A.2892/10 IN O.S.535/10. EXHIBIT-P4. TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS TO EXHIBIT-P3. EXHIBIT-P5. TRUE COPY OF THE COMMISSION REPORT DATED 16.8.2010 WITH PLAN. EXHIBIT-P6. TRUE COPY OF THE ORDER DATED 8.12.2010 IN I.A.2892/10 IN O.S.535/10 OF II-ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA. EXHIBIT-P7. TRUE COPY OF THE JUDGMENT DATED 21.6.2011 IN CMA 2/2011 OF SUB COURT, NEYYATTINKARA. RESPONDENTS' EXHIBITS NIL THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3069 of 2011 ==================================== Dated this the 23rd day of September, 2011 J U D G M E N T This proceeding is in challenge of Ext.P7, judgment of learned Sub Judge, Neyyattinkara in C.M.A. No.2 of 2011 reversing the order passed by the learned Second Additional Munsiff, Neyyattinkara on I.A. No.2892 of 2010 in O.S. No.535 of 2010. Dispute concerned right to use plaint B schedule way. Respondents claimed that they have a right of easement by way of necessity/grant over the disputed way based on partition deed No.2046 of 1981. Petitioners denied existence of the way as referred to in plaint B schedule and right for respondents over the said way. Learned Munsiff found no prima facie case in favour of respondents and dismissed I.A. No.2892 of 2010. That order was reversed by the learned Sub Judge in C.M.A. No.2 of 2011 based on certain recitals in the partition deed. 2. Learned counsel for petitioners contended that Ext.P7, judgment cannot stand and that there was no justifiable reason to reverse the finding entered by the learned Munsiff in that order of learned Munsiff was neither arbitrary nor capricious or perverse. O.P(C) No.3069 of 2011 -: 2 :- 3. I have gone through Ext.P6, order of the trial court and Ext.P7, judgment of the appellate court. Learned Munsiff appears to have taken the view that plea of easement by way of necessity/grant cannot stand since report of the Advocate Commissioner revealed that respondents have an alternative access to their property and partition deed does not contain any recital granting right. Learned Sub Jude has referred to clause (11) of the partition deed and held that the said recital as well as the report revealed existence of plaint B schedule way and the said recital required parties not to interfere with the existing way. Learned Sub Judge also observed that the question whether respondents are entitled to a right of easement by way of necessity/grant is to be decided in the suit and in the circumstances directed to maintain the present condition of way. Accordingly Ext.P7, judgment was passed. 4. Having heard counsel and gone through Exts.P6, order and P7, judgment , I do not find reason to interfere with decision of the learned Sub Judge. 5. Learned counsel submitted that petitioners are aggrieved by some of the observations made by learned Sub Judge in Ext.P7, judgment which may affect ultimate decision of O.P(C) No.3069 of 2011 -: 3 :- the case. It is made clear that any observations made by the learned Sub Judge shall be confined to the disposal of C.M.A. No.2 of 2011 and shall not affect or influence learned Munsiff in disposing of the suit based on the contentions raised by parties and evidence on record. 6. It is pointed out that petitioners have filed O.S. No.506 of 2010 in the court of learned Munsiff, Neyyattinkara against respondents concerning the same subject matter and that both suits are to be tried and disposed of jointly. I make it clear that it is open to any of the parties in O.S. No.506 of 2010 to approach learned District Judge, Thiruvananthapuram for transfer of the said case and if any such request is made learned District Judge shall consider the same and pass appropriate orders as provided under law and as circumstances warranted. With the above observations and directions this Original Petition is closed. THOMAS P. JOSEPH, JUDGE. vsv