Aranavalappil Eruvadi vs Vilasini

C.S.Dias, J

The original petition is filed to set aside the order in I.A.No.2/2022 in O.S. No.136/2022 (Ext.P10) of the Court of the Munsiff, Hosdurg(Trial Court) and the judgment in CMA No.16/2022 (Ext.P11) of the Court of the Subordinate Judge, Hosdurg (Appellate Court).

The petitioners’ case, relevant for the determination of the original petition is that, they are the defendants in the above suit, which was filed by the respondents before the Trial Court for a decree of permanent prohibitory injunction, inter-alia, to restrain the petitioners and their men from trespassing into plaint ‘B’ schedule property and obstructing their user. Along with the suit, the respondents have filed Ext.P2 application, seeking an order of temporary injunction. The application was opposed by the petitioners by filing Ext.P3 counter statement. Ext.P4 is the partition deed. At the instance of the respondents, an Advocate Commissioner was appointed, who has filed Exts.P5 and P6, report and sketch. On the basis of Exts. P5 and P6, the Trial court, by Ext.P7 order, directed the parties to maintain ‘status quo’. As Exts.P5 and P6 suffered from defects and inadequacy, the petitioners filed I.A. No.5/2022 to depute the Advocate Commissioner to elucidate additional matters as sought for in the application. The Advocate Commissioner has filed Exts.P8 and P9, additional report and sketch. The Trial Court, by impugned Ext.P10 order, has passed an order of temporary injunction as prayed for in Ext.P2 application. Ext.P10 order has been confirmed by the Appellate Court by Ext.P11 judgment. Exts.P10 and P11 are manifestly erroneous and unsustainable in law. Hence, the original petition.

Heard; Sri. Suresh Kumar Kodoth, the learned counsel appearing for the petitioners and Sri.Jawahar Jose, the learned counsel appearing for the respondents.

The point is whether there is any error or illegality in Ext.P10 and P11 orders passed by the courts below.

Ext.P1 plaint has been instituted by the respondents seeking a decree for permanent prohibitory injunction. Along with Ext.P1, the respondents also filed Ext.P2 application. At their instance, an Advocate Commissioner was deputed, who by Ext.P5 report, has, inter alia, reported thus:

“3.The B schedule property as per the plaint description is a road having an average width of 3 meters and length of 40 meters. The plaintiffs have shown the same to the Commissioner and it is marked as plot ‘GIJF’ in the eye sketch. It has got a length of 12.40 meters and width of 3 meters. This plot is covered with baby jelly. Vehicles can be takan to the ‘A’ schedule property through the plot ‘GIJF’. House of the defendants bearing door No VI/163-A of Kayyur-Cheemeni Grama Panchayath is seen on the immediate west of GI line drawn in the eye sketch. Laterite stone compound wall is seen along the ‘GIJF’ on account of the spreading of baby jelly. The plaintiff represented that they have been using the said plot as a road to ‘A’ schedule property. There are tyre marks in plot GFKL seen on the north of plot ‘GIJF’. Plot GFKL is part of plaint 'A' schedule property and a Maruti Swift Car bearing No.KL-60-K-9113 is seen parked in the courtyard of the house in the 'A' schedule property. Plot GFKL is having a length of 9.80 metrs and width of 2.70 meters and the same is seen as a mud road. A Panchayath road is seen running in east-west direction on the south of plot ‘GIJF’ as marked in the eye sketch. Some laterite stones are seen beneath the wet red soil in the plot 'GIJF’. But the entire GIJF plot is not seen paved with laterite stones. About 250 laterite stones are seen unloaded in the defendant's property as well as on the eastern portion of plot ‘GFKL’. The Commissioner could not see any other access to reach the ‘A’ schedule property. The plot ‘GIJF’ has got no boundary on its west (GI line) to identify the same separately from the property of the defendants seen on the west of GI line. Moreover, the courtyard of the house seen on the west of GI line is also covered with baby jelly.”

On the basis of Ext.P5 report, the Trial Court passed Ext.P7 order directing the parties to maintain ‘status quo’.

Subsequently, at the instance of the petitioners, the Advocate Commissioner was again deputed to report certain additional matters. The Advocate Commissioner by Ext.P8 order has again, inter alia, reported thus:-

“3.The direction No.5 in the I.A. No.5/22 is to note about a pathway having a length of 12 meters of width of 90 cms on the extreme eastern boundary of the defendants’ property. The Commissioner could not see any pathway having aforesaid dimensions on the extreme eastern boundary of the plot marked as MOIPQNM. Based on the representation of the defendants the Commissioner has marked the plot FJPQ in the eye sketch as the way claimed by them. This plot is covered with grass and baby jelly. The nature of the plot GIJF has already seen reported by the Commissioner in his report dated 04.06.2022 and hence not repeated herein. The mud road seen in the A schedule property is old in appearance. The earlier report and eye-sketch dated 04.06.2022 may be treated as part of this report.”

The trial court on the basis of Exts.P5 and P8 reports and after interpreting Ext.P4 partition deed, arrived at a conclusion that the respondents have made out a prima facie case, the balance of convenience rests in their favour and if an order of temporary injunction is not granted, the respondents would suffer irreparable loss and injury. Accordingly, the Trial Court passed Ext.P10 order, restraining the petitioners from obstructing the respondents user of plaint ‘B’ schedule property.

On the challenge made by the petitioners against Ext.P10 order, the Appellate Court re-appreciated the matter and by Ext.P11 judgment has confirmed Ext.P10 order after being convinced that the respondents have made out a prima facie case, the balance of convenience rests in their favour and if an order of temporary injunction is not passed, the respondents would be put to irreparable loss and injury.

10 Thus, the courts below have concurrently found the respondents are entitled to an order of temporary injunction after prima facie finding the existence of a pathway.

The disputed question is the width of the pathway. The respondents contend that the pathway has a width of 3 meters, whereas the the petitioners contend that the pathway has width of 90 centimeters. This is a matter of evidence.

Undisputedly, the respondents have been using the pathway. The Advocate Commissioner has noted that a car lying in the plaint ‘A’ schedule property. Therefore, for the ingress and egress of a car through plaint B schedule property, certainly the width of the pathway should more than 90 cms. Moreover, Ext.P4 partition deed speaks of a ‘pathway’ and not a ‘footway’. Both courts have prima facie interpreted Ext.P4 and have arrived at the same conclusion that plaint ‘B’ schedule is the only pathway leading to plaint ‘A’ schedule and the same is reserved in Ext.P4 deed. Further, Exts.P5 and P8 reports prove that the petitioners have carried out construction in their property, and, therefore, the apprehension of the respondents is genuine. Nonetheless, all the said issues can only be decided after a full fledged trial.

The courts below have on a thread bare analysis of the pleadings and materials on record have concurrently exercised their discretion in favour of the respondents under Order XXXIX of the Code of Civil Procedure. It is not for this Court to sit in judgment over the prima facie finding of fact and the discretionary powers exercised by courts below that the respondents are entitled for an order of temporary injunction.

I do not find any illegality or perversity in Exts.P10 and P11 orders warranting interference by this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. The Trial Court shall, as observed by the Appellate Court in Ext.P11, dispose of the suit untrammelled by any observations made in Ext.P10 and P11 and this judgment, which have been rendered only for the purpose of considering the question of granting an order of temporary injunction. The Trial Court is directed to dispose of the suit in accordance with law. The original petition fails and is hence dismissed.