IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 FAO.No. 314 of 2008() ----------------------------- I.A.1215/2007 AND IA.1335/2007 IN AS.55/2007 of SUB COURT,ATTINGAL OS NO.34/2000 AND OS.83/2000 of MUNSIFF COURT,ATTINGAL .................... APPELLANT/PETITIONER/APPELLANT/PLAINTIFF. ----------------------------------------------------------------------- SARASAMMA, D/O.LAKSHMI, KUZHIVILA PUTHEN VEEDU, THENCHERIKONAM, MANAMBOOR VILLAGE, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, SRI.P.RETNAKARAN, S/O.PARAMESWARAN, KUZHIVILA PUTHEN VEEDU, THENCHERIKONAM, MANAMBOOR VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS. ------------------------------------------------------------------------------------------ 1. SANTHA KUMARI, D/O.SATHYADEVAN, BIJU NIVAS, THENCHERIKONAM, MANAMBOOR VILLAGE. 2. SINDHUKUMARI, D/O.GIRIJAMMA, SINDHU BHAVAN,THENCHERIKONAM, MANAMBOOR VILLAGE. 3. ANANTHA BABU, S/O.CHELLAPPAN, ALAPARATHU VEEDU,THENCHERIKONAM, MANAMBOOR VILLAGE 4. GOPALAKRISHNA KURUP, S/O.CHELLAPPAKURUP, VILAYIL VEEDU,THENCHERIKONAM, MANAMBOOR VILLAGE. 5. REMESA KURUP, S/O.CHELLAPPAKURUP, VILAYIL VEEDU,THENCHERIKONAM, MANAMBOOR VILLAGE. 6. JALALUDEEN, JASIN MANZIL, THENCHERIKONAM, MANAMBOOR VILLAGE. 7. MANIKANTA KURUP, S/O.CHELLAPPAKURUP, VILAYIL PUTHEN VEEDU,(SAROJA BHAVAN), THENCHERIKONAM, MANAMBOOR VILLAGE. BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== FAO No.314 OF 2008 ===================== Dated this the 10th day of December 2008 JUDGMENT This first appeal is preferred against the common order of the Sub Court, Attingal in I.A.Nos.1215 & 1335 of 2007 in A.S.No.55 of 2007. I.A.No.1215/2007 is an application for injunction to restrain respondents from trespassing into the plaint H schedule property and from putting up any structure thereon and the other I.A. is an application to direct the respondents by a mandatory injunction to remove the barbed wire fencing over plaint H schedule way. The appellate court, after considering the entire matter, had dismissed both the applications and it is against that order the present FAO is filed. 2. The trial court after considering the entire materials held that the plaintiff is not entitled to any relief in the suit and therefore dismissed the suit. The suit is with respect to the right of way described as H schedule by way of prescriptive easement. The plea of necessity is also incorporated. One court after elaborate consideration had given a verdict against the plaintiff. The applications filed before the appellate court itself would reveal FAO 314/2008 -:2:- that after the disposal of the case even according to the plaintiff, a barbed fence has been put up thereby obstructing the pathway. Now unless one is able to enter into a finding that the trial court has not appreciated the matter properly or has gone wrong, it may be very difficult to grant such a relief. As one is aware, the right of easement is a precarious right which restricts the usage of the property by the owner. So many materials have to be taken into consideration and when there is one judgment, which holds against the plaintiff, it may not be proper at an interlocutory stage to grant a relief of mandatory injunction. I make it very clear that these observations are made not to affect the merits or demerits of the case, but the difficulties that will be experienced by the court in granting an interim mandatory injunction at the appellate stage. It is also to be stated that granting of interim mandatory injunction is an extreme step that is adopted by the courts. Therefore at this stage, I do not propose to interfere with the finding rendered by the appellate court. But the grievance of the plaintiff is that her way has been obstructed and therefore she must have an expeditious disposal. Therefore I direct the appellate Judge to dispose of the matter within two months from the date of receipt of a copy of this judgment untrammelled by the observations made in this judgment or in the order written by him while disposing of the interim applications. The Registry is directed to send a FAO 314/2008 -:3:- copy of this judgment to the Sub Judge, Attingal for compliance. FAO is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-