M.A. Jeeva vs Mathew Scaria @ Raju

Thomas P. Joseph, J.—This petition is in challenge of Ext.P10, judgment dated 20.08.2010 in C.M.A. No. 7 of 2010 of the court of

learned Sub Judge, Kattappana reversing the order passed by learned Munsiff, Kattappana on I.A. No. 10 of 2010 in O.S. No. 213 of 2009.

That is a suit filed by petitioner for a decree for prohibitory injunction alleging that he is enjoying a right of access to plaint A schedule belonging to

him through plaint B schedule having a width of 12 feet. Petitioner claimed right of easement by way of prescription over plaint B schedule. He also

filed an application for temporary injunction and the learned Munsiff granted an interim order. The Advocate Commissioner inspected property and

submitted report and sketch which according to the petitioner indicated existence of a way as stated in plaint B schedule. It is the further case of

the petitioner that later in violation of the order of injunction respondent-defendant caused obstruction to plaint B schedule pathway and reduced its

width to three feet. Thereon petitioner filed I.A. No. 10 of 2010 for an order of mandatory injunction. That application was allowed. Respondent

challenged that order in C.M.A. No. 7 of 2010. In the meantime one Joshwa Mathew, grand son of respondent filed O.S. No. 3 of 2010 in the

court of learned Munsiff, Kattappana for a decree for prohibitory injunction against petitioner trespassing into the property claimed to be his. He

denied existence of a way as claimed by petitioner. Joshwa Mathew was unsuccessful in getting an order of interim injunction obviously in the light

of the report and sketch submitted by the Advocate Commissioner immediately after the institution of O.S. No. 213 of 2009. Refusal to grant

interim order in favour of Joshwa Mathew was challenged before the learned Sub Judge in C.M.A. No. 4 of 2010. Learned Sub Judge disposed

of C.M.A. No. 7 of 2010 while C.M.A. No. 4 of 2010 was pending in that court. Against disposal of C.M.A. No. 7 of 2010 petitioner filed

W.P(C) No. 17551 of 2010 in this Court. This Court set aside the judgment of learned Sub Judge in C.M.A. No. 7 of 2010 (Ext.P10) and the

appeal was remitted to the learned Sub Judge to be disposed of along with C.M.A. No. 4 of 2010. Thereafter learned Sub Judge disposed of

C.M.A. Nos. 4 and 7 of 2010. Refusal of learned Munsiff to grant order of temporary injunction in favour of Joshwa Mathew was confirmed and

C.M.A. No. 4 of 2010 was dismissed. C.M.A. No. 7 of 2010 was allowed and the order of mandatory injunction granted on I.A. No. 10 of

2010 (in O.S. No. 213 of 2009) was reversed for the reason that Joshwa Mathew who claimed to be the owner in possession of the disputed B

schedule was not made a party in O.S. No. 213 of 2009. Exhibit P10, judgment in C.M.A. No. 7 of 2010 is under challenge in this petition.

I have heard counsel on both sides. Having heard counsel on both sides it appears to me that an interim arrangement has to be made until

disposal of the suit. Learned Counsel for respondent-defendant has made an undertaking that notwithstanding the dispute raised by respondent

regarding ownership and possession of the property, respondent will provide a way having width of three feet for access to the petitioner to the

plaint A schedule and that the obstruction if any in the said portion will be removed by the respondent within a week from this day. Learned

Counsel for petitioner is also agreeable for the said suggestion for the time being. Considering the facts circumstances of the case I am of the view

that undertaking can be accepted leaving open all contentious issues to be decided by the trial court after recording evidence. Learned Counsel for

petitioner states that in the meantime he will take steps to implead Joshwa Mathew as additional defendant in O.S. No. 213 of 2009.

Resultantly, Original Petition petition is disposed of in the following lines:

(i) Undertaking made by learned Counsel for respondent that respondent will provide a way having width of three feet on the southern side of the

property which respondent claimed to be belonging to Joshwa Mathew and extending east-west along the entire southern boundary of the said

property within a week from this day for access for petitioner and his men to the plaint A schedule is accepted and recorded. Respondent shall do

so within the said period.

(ii) Undertaking made by learned Counsel for respondent that if there is any obstruction in the said way (having a width of three feet), such

obstruction will be removed within the said period of one week from this day is accepted and recorded. Respondent shall do so within the said

period.

(iii) It is directed that the above interim arrangement will continue until disposal of the suit.

(iv) Contentious issues shall be decided by the trial court untrammelled by the observation contained in the order on I.A. No. 10 of 2010 or the

judgment in C.M.A. No. 7 of 2010.