Raveendran Nadar And Smitha Rani vs Karthikeyan Nair, Girijakumari and Jitha K.Nair

P. Bhavadasan, J.—In this writ petition, petitioner challenges Ext.P10 order passed by the Sub Court, Neyyattinkara in C.M.A. 12 of 2011 confirming the order of the Munsiff''s court in I.A. 134 of 2011 in O.S. 16 of 2011 dismissing the application for injunction filed by the plaintiffs in the suit as against the defendants. According to the plaintiffs, plaint A and B schedule properties belong exclusively to them having obtained it by virtue of the sale deed No.1999 of 2004 dated 2.12.2004. Plaint B schedule is the pathway. Defendants are alleged to be owners of the property on the northern and eastern sides of plaint A schedule property. It is pointed out that they have no rights over plaint A and B schedule properties and it exclusively belonged to the plaintiffs. Alleging that the defendants are threatening to OPC. 4244/2011. 2 interfere with the right of the plaintiffs over plaint A and B schedule properties, suit was laid. I.A.134 of 2011 is filed seeking interim injunction against the defendants.

The defendants resisted the suit. It was pointed out by them that the pathway in question has a width of 1.75 meters and that the plaintiffs have no exclusive right over the pathway. The sale deed relied on by the plaintiffs allows them only to use the pathway and the defendants are also entitled to use the said pathway. Relying on sale deed No.123 dated 17.1.1979, the defendants contended that it is clear from the said sale deed that the pathway was already in existence. Defendants laid claim over the pathway raising prescriptive right of easement.

Before the court below, plaintiffs had Exts.A1 to A3 marked and the commission reports and plans were marked as Exts.C1, C1(a), C2 and C2(a).

The trial court came to the conclusion on the basis of materials before it that the claim of the plaintiffs OPC. 4244/2011. 3 that the defendants are trying to cut open a pathway is not correct. On the basis of the reports of the Commissioners, the trial court found that the pathway is more than 25 years old and the pathway was already in existence. Relying on the commission report, the trial court dismissed the petition.

The aggrieved plaintiffs carried the matter in C.M.A.12 of 2011. The lower appellate court on an independent consideration of the materials concurred with the trial court and dismissed the C.M.A.

Learned counsel appearing for the petitioners drew the attention of this court to paragraph 12 of the judgment of the lower appellate court wherein it was observed that going by Ext.C2(a), plaint B schedule pathway falls outside of plaint A schedule property and that the same has not been purchased by the plaintiffs and they have only a right to use plaint B schedule pathway. Learned counsel for the petitioners contended that the said observation causes considerable prejudice to the petitioners. It is also pointed out by the petitioners that under the guise of using OPC. 4244/2011. 4 the pathway, the respondents/defendants are trying to construct a road taking portion of plaint A schedule property, for which they have no right. It is contended that the court below ought to have granted an injunction atleast with regard to plaint A schedule property.

Learned counsel appearing for the respondents on the other hand pointed out that it is a comprehensive relief that was sought for by the plaintiffs and the court below was constrained to consider whether the plaintiffs are entitled to injunction as against the defendants. Commission reports and plans as well the documents of title relied on by the plaintiffs will show the existence of the pathway and also that it is an old pathway. It is contended that the courts below were therefore justified in dismissing the I.A. and C.M.A. and that no grounds are made out to interfere with the order of the lower appellate court.

Having heard counsel on both sides and after perusing the available records, this court finds no grounds to interfere with the order of the court below.

The plaintiffs claimed that plaint B schedule pathway is a portion of plaint A schedule property obtained by him as per Sale deed No.1999 of 2004 and also that the defendants are trying to cut open a pathway through their property. The commission reports and plans, namely, Exts.C1, C1(a), C2 and C2(a) prepared by two different commissioners show the existence of a pathway and prima facie it is seen that the pathway is an old one. Therefore the claim of the plaintiffs that the defendants are trying to cut open a pathway does not appear to be correct as rightly noticed by the courts below. In fact there was no finding by the court below regarding the age of the pathway and the nature of the rights of the parties etc. Those are matters to be determined by the trial court after trial. So also the claim of the plaintiffs that plaint B schedule pathway forms part of plaint A schedule property as per sale deed No.1999/2004. At any rate, it is difficult to hold on the materials available that the courts below have erred in coming to the conclusion that the plaintiffs are not entitled OPC. 4244/2011. 6 to an interim injunction. However, it is made clear that the defendants are entitled to use the pathway as determined by the Commissioner in Exts.C1 and C2 reports and C1(a) and C2(a) plans and also that they shall not interfere with the peaceful enjoyment and possession of plaint A schedule property by the plaintiffs. This court finds no reason to interfere with the order of the court below except to the extent indicated above. It is also made clear that the trial court may dispose of the suit as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment, untramelled by the observations made by the lower appellate court or this court while disposing of this writ petition.

Forward a copy of this judgment to the trial court.