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High Court of KeralaOP(C)/1443/2015disposed of

Moideen Kunhi v. Najila

2015-12-07Honourable Mr. Justice K.Abraham Mathew4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW MONDAY, THE 7TH DAY OF DECEMBER 2015/16TH AGRAHAYANA, 1937 OP(C).No. 1443 of 2015 (O) --------------------------- AGAINST THE JUDGMENT IN CMA 2/2015 of DISTRICT COURT, KASARAGOD DATED 20.05.2015 AGAINST THE ORDER IN O.S.NO. 314/2014 of ADDL.MUNSIFF'S COURT, KASARAGOD ........................

PETITIONER(S)/RESPONDENTS/RESPONDENTS :-:

-------------------------------------------------------------------- 1.

MOIDEEN KUNHI, AGED 44 YEARS, S/O.BANDI MUHAMMED, RESIDING AT THAIVALAPPU HOUSE CHENGALA VILLAGE, CHENGALA P.O.

KASARAGOD TALUK AND DISTRICT, PIN - 671 541.

2.

HAMEED, AGED 31 YEARS, S/O.MUGU ABDULLA, RESIDING AT BALADKA HOUSE, CHERKALA CHENGALA VILLAGE, CHENGALA P.O.

KASARAGOD TALUK AND DISTRICT, PIN - 671 541.

BY ADVS.SRI.T.R.RAVI SRI.JAWAHAR JOSE SRI.V.VINAY MENON SMT.CISSY MATHEWS SRI.ARUN AJAY SHANKAR RESPONDENT(S)/APPELLANT/PETITIONER :-:

------------------------------------------------------------- NAJILA, AGED 26 YEARS, D/O.ABDULLA BEKAL AND W/O.MUHAMMED SHEREEF, CHERKALA CHENGALA VILLAGE, CHENGALA P.O.

KASARAGD TALUK AND DISTRICT, PIN - 671 541.

R1 BY ADV. SRI.D.KRISHNA PRASAD R1 BY ADV. SRI.P.VISHNU PRASAD THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV : 2 :

OP(C).No. 1443 of 2015 (O) ------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS :

------------------------------------- EXHIBIT P1.

COPY OF THE ORDER DATED 13.01.2015 IN I.A.NO.1726/2014 IN O.S.NO.314/2014 OF THE MUNSIFF'S COURT, KASARAGOD. EXHIBIT P2.

COPY OF THE ORDER DATED 20.05.2015 OF THE DISTRICT COURT, KASARAGOD IN CMA NO.2/2015.

EXHIBIT P3.

COPY OF THE COMMISSION REPORT DATED 04.12.1992 IN O.S.NO.682/1992.

EXHIBIT P4.

COPY OF THE COMMISSION REPORT DATED 11.09.1995 IN O.S.NO.682/1992.

EXHIBIT P5.

COPY OF THE COMMISSION REPORT DATED 04.08.1996 IN O.S.NO.682/1992.

EXHIBIT P6.

COPY OF THE COMMISSION REPORT DATED 11.02.2008 IN O.S.NO.109/2007.

EXHIBIT P7.

COPY OF THE PLAN APPENDED TO EXT.P6 COMMISSION REPORT. EXHIBIT P8.

COPY OF THE COMMISSION REPORT DATED 16.10.2008 IN O.S NO.109/2007.

EXHIBIT P9.

COPY OF THE PLAN APPENDED TO EXHIBIT P9 COMMISSION REPORT. EXHIBIT P10. COPY OF THE SKETCH PRODUCED BY THE RESPONDENT ALONG WITH THE PLAINT IN O.S NO.314/2014.

RESPONDENT(S)' EXHIBITS :

--------------------------------------- EXT.R1A COPY OF EXT.C1 REPORT DATED 27.09.2014 IN O.S.NO.314/2014 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, KASARAGOD. EXT.R1B COPY OF THE PLAINT DATED 30.10.1992 IN O.S.NO.682/1992 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, KASARAGOD. EXT.R1C COPY OF THE JUDGMENT DATED 25.10.1997 IN O.S.NO.682/1992 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, KASARAGOD. /TRUE COPY/ P.A.TO JUDGE AMV

K. ABRAHAM MATHEW, J.

- - - - - - - - - - - - - - - - - - - - - - - O.P.(C)No.1443 of 2015 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December, 2015

J U D G M E N T

The petitioners are the defendants in OS.314 of 2014 on the file of Munsiff Court, Kasaragod, which has been filed by the respondent for a perpetual injunction in respect of a pathway described in plaint B schedule. The latter filed an application for a temporary injunction restraining the former from altering the nature of the plaint B schedule pathway and for other reliefs. That was dismissed by the learned Munsiff by Ext.P1 order. In CMA 2 of 2015 the learned District Judge has vacated the order and has restrained the petitioners from "trespassing over the way noted by the commissioner in Ext.C1 or in any way interfering with the peaceful user of the same by the plaintiff till the disposal of the suit". This is challenged. 2.

Heard.

3.

The only available evidence in the case is Ext.R1 (a) report filed by the commissioner, who inspected the property immediately after the institution of the suit. He has reported that he could see an old mud road in eastwest direction and it leads to the plaint A schedule

O.P.(C)No.1443 of 2015 property. Further he has observed that there is an old compound wall about 30 meters length on both side of the mud road and the road appears to be old. The judgment of the learned District Judge shows that injunction has been granted by him in respect of this road. The learned counsel for the petitioners submits that this is not the road claimed by the respondent, which is evident from Ext.P10 sketch produced by the respondent along with the suit. The pathway claimed in this suit passes through the middle of the respondent's property. It is obvious that this is not the road noted by the commissioner in his report. I have no doubt that the learned District Judge did not take notice of this fact, which is why he has set aside the order of the learned Munsiff.

In the result, this OP is disposed of with the clarification that the road mentioned in Ext.P2 judgment in CMA 2 of 2015 is the mud road passing between two compound walls and which reaches the plaint A schedule property. The injunction will be confined to this road alone. sd/- K. ABRAHAM MATHEW JUDGE R.AV //True Copy// PA to Judge