Thankamma Sukumaran vs Gopalan

P. Bhavadasan, J.—Under challenge is Ext. P10 order whereby the lower appellate court dismissed I.A. No. 1236/14 in A.S. No. 112/2014, which was a Commission application filed by the appellant along with a petition for temporary mandatory injunction.

The facts absolutely necessary for the adjudication of this petition are as follows:

"The petitioner before this court instituted O.S. No. 24/2013 claiming a prescriptive right of easement of way through plaint item No. 3 pathway which he claimed was using through the property of the defendant in the suit and complaining of attempted trespass and interference and obstruction of the pathway. The defendants entered appearance and resisted the suit by pointing out there is no such pathway in existence. He also laid a suit as O.S. No. 28/2013 raising a claim that the plaintiff in O.S. No. 24/2013 is trying to trespass into his property and put up a way through their property. Commissions were taken out in both the suits who prepared plans. The court below found that there was no evidence of a pathway as claimed in O.S. No. 24/2013 and dismissed the suit. The suit 28/2013 was decreed partly granting prohibitory injunction in favour of the plaintiff. The aggrieved plaintiff in O.S. No. 24/2013 carried the matter in appeal as A.S. No. 112/2014."

Contending that after the disposal of the suit, the respondent before the lower court has obstructed and destroyed the pathway, the petitioner prayed for issuance of Commission to assess the damages caused to the way and for direction to restore the way.

The petition was obviously opposed by the respondents.

The lower appellate court found that the petitioner failed to establish the existence of a way and also that any manner of right over the property of the plaintiff in O.S. No. 28/2013 and they were not entitled to claim interim relief and dismissed the petition.

The learned counsel appearing for the petitioner pointed out that the lower appellate court below is not justified in not at least issuing a Commission to assess the obstruction caused to the way so that if the appellants succeed in the appeal, there may not any hindrance for them to seek restoration of the way. It is also contended that all through out while the matter was pending before the trial court, the appellant enjoyed an order of temporary injunction and they were using the alleged way till the culmination of the suit. That way, according to the petitioner should have been allowed to be used during the pendency of the appeal also and the lower appellate court was not justified in dismissing the petition.

The learned counsel appearing for the respondents on the other hand contended that having denied the very existence of the way and having obtained a decree in their favour, an interim order of the nature sought for cannot be granted. They are claiming use of a non-existent way. It is also pointed by the learned counsel that there were two Commission reports. The court below found that the commission report filed in O.S. No. 24/2013 is not capable of acceptance for more reasons than one. The court came to the conclusion that the way is not identifiable and non-suited the appellant. The learned counsel then pointed out if the plaintiff succeeds in the appeal, they will be entitled to seek restoration of the way as per the commission report and a mandatory injunction is not warranted at this stage.

After having heard on both sides and after having gone through the order, it seems that there is considerable force in the submissions of the learned counsel for the respondents. Of course, it is to be noted that there were two commission reports and they are contradictory to each other. While the first commissioner in O.S. No. 24/2013 made mention of a way, the commissioner in O.S. No. 28/2013 does not find such a way. One fact needs to be pointed out that in the plaint there is no mention of the two terminus of the way. Apart from that, the trial court also found that it is not possible to identify the way from the description in the plaint.

It may not be appropriate at this stage to indicate anything on the merits of the case as the appeal is pending before the lower appellate court. The question is only whether there should be an order issuing a commission as prayed for by the appellant before the court below.

Admittedly, there are Exts. C1 and C1(a) reports of the commissioners deputed in O.S. No. 24/2013 wherein the existence of way is mentioned. If as a matter of fact, the appellants are able to succeed in the appeal, it will not be difficult to locate the way and also it will not be difficult to restore that way as the commission report contain the details. As of now, it has been found that there is neither a way nor any right for the plaintiff in O.S. No. 24/2013 to use any portion of the property of the defendant.

For the above reasons, this court finds no reason to interfere with the lower appellate court''s order, which is purely an interim order and the appeals are yet to be decided on merits. However, it is made clear that none of the observations made while disposing of the Interlocutory Application including the observation made by this court in this petition shall stand in the way of the appellate court in disposing of the appeal as expeditiously as possible, on merit and in accordance with law.