Aliyamma Edatt vs Mathew Vakkachalil and James Chennatt

Thomas P. Joseph, J.—This original petition is filed by the plaintiff in O.S. No. 492 of 2012 of the Munsiff''s Court, Thalipparampa seeking a direction to the learned Munsiff to keep in abeyance execution of Ext. P3, order on I.A. No. 3663 of 2012 in O.S. No. 334 of 2009 (filed by the first respondent against the second respondent) until disposal of I.A. No. 3606 of 2012 in O.S. No. 492 of 2012 and a further direction to the learned Munsiff to dispose of I.A. No. 3606 of 2012. According to the petitioner, she has acquired right of easement by prescription over plaint B schedule way and prayed for a declaration of that right and prohibitory injunction. She filed I.A. No. 3606 of 2012 for an order of temporary injunction to restrain respondents causing obstruction to the user of plaint B schedule way.

First respondent filed O.S. No. 334 of 2009 against the second respondent for prohibitory injunction. First respondent alleges that pending that suit, second respondent demolished the compound wall and cut open a way. First respondent filed I.A. No. 3663 of 2012 in O.S. No. 334 of 2009 and obtained an order for mandatory injunction. Though second respondent challenged that order in this Court, appeal preferred by the second respondent was dismissed. Second respondent came to this Court with O.P.(C). No. 1754 of 2012 which this Court disposed of as per Ext. R1(g) dated 30-11-2012.

Apprehension of petitioner is that if pursuant to Ext. P3, order, first respondent constructs compound wall that would block her access through the plaint B schedule to the public road. Hence this original petition seeking reliefs as first above mentioned.

Learned counsel for petitioner has brought my attention Ext. P2 report and the sketch accompanying it. It is argued that petitioner is having access from the Payyavoor-Ulickal road to her property through plaint B schedule and that if Ext. P3, order of mandatory injunction is executed, that would block her entry to the plaint A schedule from the said public road. It is also contended that petitioner is not a party in O.S. No. 334 of 2009 and that first respondent filed that suit in collusion with the second respondent to defeat the claim of petitioner.

Learned Senior Advocate appearing for the first respondent has contended that when second respondent failed in O.S. No. 334 of 2009, he has set up petitioner and caused O.S. No. 492 of 2012 to be filed. It is also argued that plea of the collusion between respondents 1 and 2 cannot be sustained for the reason that second respondent had challenged Ext. P3 order, failed and even came to this Court with O.P.(C). NO. 1754 of 2012. It is further pointed out that through the remaining portion of the way shown by the Advocate Commissioner in Ext. P2, petitioner can gain access to the Payyavoor-Ulickal road.

The question as to who colluded with whom, is a matter which the trial court has to decide in O.S. No. 492 of 2012 if that arises for a decision.

Now the question is whether until disposal of I.A. No. 3606 of 2012 (in O.S. No. 492 of 2012), execution of Ext. P3, order as confirmed by Ext. R1(g) judgment should be prevented.

Going through Ext. P2 report and the sketch accompanying, it is seen that plaint B schedule as claimed by petitioner starts on the south from Payyavoor-Ulickal road and reaches up to the northern boundary of the property of the first respondent. In Ext. P2 and the sketch, in continuation of the disputed plaint B schedule, the road is seen running towards further north, then towards west and reaching Payyavoor-Ulickal road.

On hearing of learned counsel on both sides and going through the Ext. P2 and the sketch it is revealed that even if Ext. P3 order as confirmed by this court also in Ext. R1(g) judgment is executed, petitioner can gain access to the Payyavoor-Ulickal road through the remaining portion of the road shown in the sketch accompanying Ext. P2.

Therefore, there is no reason why enforcement of Ext. P3, order should be prevented. But, it should be made clear that enforcement of that order shall not affect petitioner gaining access to the Payyavoor-Ulickal road through the remaining portion of the road shown in the sketch accompanying Ext. P2 report. Learned counsel for petitioner requests that the said arrangement may be extended until disposal of O.S. No. 492 of 2012 and that I.A. No. 3606 of 2012 may be disposed of accordingly. Since second respondent is not before me and in I.A. No. 3606 of 2012 relief is sought against the second respondent also, I am not inclined to dispose of I.A. No. 3606 of 2012. But, so far as first respondent is concerned, appropriate direction could be made.

Resultantly, this original petition is disposed of as under:-

a) It is directed that while executing Ext. P3, order it shall be ensured that access to the plaint A schedule through the remaining part of the way shown by the Advocate Commissioner in the sketch accompanying Ext. P2, report in O.S. No. 492 of 2012 to the Payyavoor-Ulickal road (towards north and then towards west) is not affected.

b) The said arrangement so far as the first respondent is concerned would remain in force until disposal of O.S. No. 492 of 2012.

c) So far as relief claimed by the petitioner in I.A. No. 3606 of 2012 in O.S. No. 492 of 2012 against second respondent is concerned, learned Munsiff may pass appropriate orders after hearing the parties concerned.