Santhosh Menon vs M.P. Prabhakara Menon and M.P. Viswanatha Menon

Thomas P. Joseph, J.—Plaintiff in O.S. No. 114 of 2009 of the court of learned Munsiff, Tirur is the petitioner, challenging the order on I.A. No. 704 of 2009 as confirmed by the learned Sub Judge in C.M.A. No. 22 of 2009. O.S. No. 114 of 2009 is a suit for prohibitory and mandatory injunction and recovery of damages. According to the petitioner, plaint A schedule belongs to him and plaint B schedule is the way connecting plaint A schedule with the public road on the north of the plaint A schedule running through property of respondents/defendants. It is claimed that petitioner has co-ownership right over plaint B schedule. Respondents obstructed use of plaint B schedule and hence the suit. Respondents denied existence of any such pathway as claimed by petitioner and right of coownership as pleaded by him. Learned Munsiff found no prima facie case in favour of petitioner and dismissed I.A. No. 704 of 2009. Petitioner took up the matter in C.M.A. No. 22 of 2009 before learned Sub Judge, Tirur. Two documents (marked Exts.A2 and A3 in the appeal) were produced to support contention of petitioner that he is a co-owner of plaint B schedule. Learned Sub Judge was not inclined to accept the contention of petitioner and confirmed the order on I.A. No. 704 of 2009. Hence this Writ Petition. Learned Senior Advocate for petitioner has contended that a perusal of Exts.A2 and A3 show that petitioner and respondents are co-owners of plaint B schedule and the findings of courts below to the contrary cannot be sustained. It is contended that a perusal of Ext.P5, report and sketch submitted by the Advocate Commissioner would show that petitioner has no other access to his property. Learned Counsel for respondents contended that there is no reason to interfere with the concurrent finding entered by the courts below particularly as Ext.P5, report and sketch show that there is no way of any sort to the plaint A schedule from the property of respondents on the west of plaint A schedule. It is pointed out by learned Counsel that petitioner has recently increased height of the wall on the northern side of plaint A schedule beyond which is a public lane through which petitioner has been gaining access to the plaint A schedule.

I have been referred to Ext. P5, report and sketch. True, Advocate Commissioner has reported that he could not find any other means of access to the plaint A schedule. The Advocate Commissioner has referred to a pathway (allegedly, plaint B schedule) along southern portion of the property of respondents and which reached upto the courtyard of their house. Conspicuously Advocate Commissioner was not able to find any pathway extending to the plaint A schedule or leading to the house situated in plaint A schedule. It is in the above circumstances that courts below were not inclined to grant temporary injunction as prayed for. So far as Exts.A2 and A3 are concerned, I must bear in mind that those documents are produced only before the appellate court and the trial court had no occasion to peruse the same and enter a finding. It is pointed out that a suit for partition of plaint A schedule is pending. Respondents are not admitting co-ownership right of petitioner over plaint B schedule. In that situation I do not think it appropriate for this Court, exercising jurisdiction under Article 227 of the Constitution to enter a finding even prima facie as to the claim of co-ownership made by petitioner over plaint B schedule on the strength of Exts.A2 and A3. These matters are to be decided by the Trial court. At the same time grievance of the petitioner is that he has no other means of access to plaint A schedule. Therefore trial court has to dispose of the suit as expeditiously as possible.

Resultantly this Writ Petition is dismissed directing learned Munsiff to expedite trial and disposal of the suit as early as possible and taking into account the grievance of petitioner that he has no other access to plaint A schedule. Learned Munsiff is directed to dispose of the suit untrammelled by any observation or finding contained in the impugned order/judgment or in the judgment of this Court.