Joseph vs Leela @ Sundhari and Thankappan

Thomas P. Joseph, J.—Plaintiff in O.S. No. 280 of 2009 of the court of learned Munsiff, Thodupuzha is the Petitioner. He sued for declaration of right of easement by way of prescription and consequential injunction alleging that disputed pathway has width of 12 feet. As per the version of Petitioner there was an order of injunction in force until the said order was disposed of on 24-03-2010. On 25-03-2010 as per order on I.A. No. 592 of 2010 learned Munsiff directed parties to maintain status quo for a period of 30 days.While so, alleging that in violation of the said order Respondents destroyed pathway Petitioner filed I.A. No. 604 of 2010 for an order of restoration of the pathway and I.A. No. 605 of 2010 for prosecution for alleged violation of the order of status quo.Learned Munsiff dismissed I.A. No. 605 of 2010 (obviously for want of evidence) and allowed I.A. No. 604 of 2010 in part directing Respondents to remove stones etc from the disputed pathway. Petitioner is aggrieved in that I.A. No. 604 of 2010 was allowed only in part and that there was no direction for restoration of retaining wall. Learned Counsel contends that learned Munsiff was not correct in disallowing rest of the prayer on the ground that he has no jurisdiction to entertain the matter.

I am not going to the question of jurisdiction for learned Munsiff to dispose of applications after the suit was dismissed on 24-03-2010. Learned Munsiff has now directed Respondents to remove the stones etc from the disputed way as an interim arrangement. Rest of the prayer was not allowed by the learned Munsiff. That is a discretionary order passed by the learned Munsiff which does not call for interference under Article 227 of the Constitution. If at all Petitioner is entitled to get retaining wall allegedly demolished by the Respondents restored it is not as if appellate court has no power to entertain the matter since the alleged alteration in the condition of disputed way was made after the institution of the suit. There is no reason why I should interfere with the impugned order at this stage.

Resultantly without prejudice to the right if any of the Petitioner to move the appellate court for appropriate further relief in the matter this writ petition is closed.