A.K. Sadanandan v. Mandakini and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939** **OP(C).No. 1517 of 2016 (O)** **---------------------------** **CMA 25/2016 of ADDL. ISTRICT COURT - III, ALAPPUZHA DATED 03-06-2016 O.S NO.893 OF 2015 OF THE MUNSIFF'S COURT, ALAPPUZHA.** **PETITIONER :** **----------** **A.K.SADANANDAN, S/O.KARUMBAN, AGED 69 YEARS, KURUVA PULLUKATTU VELI HOUSE, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, ALAPPUZHA - 688 001.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G SRI.DIPU JAMES.** **RESPONDENTS :** - **-----------** **1. MANDAKINI, KURUVA PULLUKATTU VELI HOUSE, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, ALAPPUZHA - 688 001.** **2. SURESH BABU, KURUVA PULLUKATTU VELI HOUSE, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, ALAPPUZHA - 688 001.** **3. CHANDRAN, KURUVA PULLUKATTU VELI HOUSE, ARYAD NORTH MURI, KOMALAPURAM VILLAGE, ALAPPUZHA - 688 001.** **BY ADV. SRI.P.MANOJKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 1517 of 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** ## **-----------------------** |**EXHIBIT P1.**|<br>**COPY OF THE PLAINT DATED 14.10.15 IN OS 893 OF 2015**| |---|---| ||**OF THE MUNSIFS COURT, ALAPPUZHA.**| |**EXHIBIT P2.**|<br>**COPY OF IA 3984 OF 2015 DATED 14.10.16.**| |**EXHIBIT P3.**|<br>**COPY OF REPORT ALONG WITH MAHASSAR AND ROUGH SKETCH**| ||**DATED 28.10.15.**| |**EXHIBIT P4.**|<br>**COPY OF OBJECTION DATED 28.1.16.**| |**EXHIBIT P5.**|<br>**COPY OF ORDER DATED 3.3.16 IN IA 3984 OF 2015 IN OS**| ||**893 OF 2015 OF THE MUNSIFFS COURT, ALAPPUZHA.**| |**EXHIBIT P6.**|<br>**COPY OF JUDGMENT DATED 3.6.16 IN CMA 25 OF 2016 OF**| ||**THE ADDITIONAL DISTRICT JUDGES COURT III,**| ||**ALAPPUZHA.**| **RESPONDENT 'S EXHIBITS : NIL -----------------------** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A. HARIPRASAD, J.** **------------------------------O.P (C) No.1517 of 2016 ---------------------------------------------Dated this the 13[th] day of July, 2017** ## **J U D G M E N T** Heard the learned counsel for the petitioner and the respondents. 2. Petitioner is the plaintiff in Ext.P1 suit filed before the Court of Munsiff, Alappuzha as O.S No.893 of 2015. The suit is one for a declaration of right of easement of necessity over plaint item No.3 pathway and a decree for consequential prohibitory injunction. Ext.P2 is the application for interim mandatory injunction alleging that on the eve of the suit, a temporary shed was constructed in item No.3, as described as item No.4 in the plaint schedule, obstructing the exercise of his easement of necessity to have access to a public road situated on the eastern side. 3. Ext.P3 is the copy of the Commissioner's report produced to establish that except the disputed pathway towards east, there is no other pathway available to the petitioner for ingress and **O.P (C) No.1517 of 2016 2** egress. 4. Petitioner/plaintiff would contend that the properties belonging to the parties to the suit were part and parcel of a larger property, which was divided as per a partition deed of the year 1982. It is the submission of the petitioner that his property is on the western side and properties belonging to the first defendant lies on the eastern side. Through the middle of the first defendant's property, a way having a width of 5 feet and a length of about 80 feet is originating from the plaintiff's house and reaching upto the public road on the eastern side. It is the contention of the plaintiff that a couple of days before institution of the suit, the defendants with a view to obstruct his pathway, erected a shed, which is described as item No.4 in the plaint schedule, for causing obstruction to the user of the pathway. 5. Per contra, learned counsel for the contesting respondents submitted that the plaintiff has alternative ways available and there is no pathway in existence in the property **O.P (C) No.1517 of 2016 3** described as item No.3 in the plaint schedule. It is also contended on behalf of the respondents that item No.4 shed was in existence much before institution of the suit and that is a temporary kitchen constructed after demolishing another one existed on the western side of the house. 6. Learned counsel for the petitioner relying on Ext.P3 contended that the Commissioner has clearly observed that apart from item No.3 pathway, there is no other access for the plaintiff and if item No.3 pathway was blocked, he will virtually be land-locked. Contention raised by the contesting respondents that the petitioner could have an access towards western side is not probabilised from Ext.P3 report. 7. Learned counsel for the respondents contended that the present petitioner has filed another suit (Ext.B1 marked in the injunction order by the court below) as O.S No.568 of 2007 before the same court, seeking a right of way through the property of the defendants in that suit for access to another property of the petitioner **O.P (C) No.1517 of 2016 4** situated on the western side of present plaint item No.1. In that case, a Commission was taken out and existence of a pathway to present item No.1 through the property of the defendants in that suit was established. That suit was admittedly compromised. It is the submission of the learned counsel for the petitioner that the disputed pathway through plaint item No.3 was not a subject matter in the earlier suit and there was no occasion for the Commission to inspect this portion of the pathway in the other suit. 8. Learned counsel for the respondents would contend that they have filed an application to set aside the Commissioner's sketch and report and the court below has not considered the application on merits. If the shed is asked to be demolished, it will have an effect of adjudicating the issues involved in the suit at an early stage. 9. In answer to this contention, learned counsel for the petitioner contended that on account of the action of the respondents, the petitioner is land-locked and he is not able to enter the outside world. The materials produced in this proceedings do not **O.P (C) No.1517 of 2016 5** prima facie show the existence of any other pathway to deny the petitioner's claim of easement of necessity. 10. It is an admitted fact that obstruction to the alleged pathway in item No.3 was caused shortly before the suit. Learned counsel for the contesting respondents contended that in the absence of a prayer for mandatory injunction in the suit, the prayer in the application for temporary mandatory injunction shall not be allowed because that will overshoot the reliefs claimed in the suit. Controverting this argument, learned counsel for the petitioner relying on a decision in _**Dorab Cawasji Warden v. Coomi Sorab Warden and others (AIR 1990 S.C 867)**_ contended that the purpose of interlocutory injunctions is to preserve or restore the status quo of the last non-contested status, which preceded the controversy. Paragraph 14 is exerted hereunder for the benefit : 14. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy- until the final hearing when full relief may be granted or to compel the undoing of those **O.P (C) No.1517 of 2016 6** acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are : - (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie cast that is normally required for a prohibitory injunction. - (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. - (3) The balance of convenience is in favour of the one seeking such relief. 11. Learned counsel for the petitioner relying on a decision in _**Appukuttan Nair v. Hydrose (2004(1) KLT 350)**_ contented that in an appropriate case, interim injunction can be granted even for restoring status quo anterior to the date of suit. The principle of law in paragraph 7 reads thus : - “7. This is a case in which as pointed out by the **O.P (C) No.1517 of 2016 7** courts below the suit was filed by the petitioners after putting up a compound wall across the pathway two days prior to the institution of the suit. As has come out from the report of the Commissioner it could be seen that there was a way which was in existence for 12 years. It cannot be said that granting of mandatory injunction was not permissible because on the date of the suit there was a compound wall across the pathway and that giving direction to remove compound wall which was in existence prior to the institution of the suit will be against maintaining _status quo_ as on the date of the suit. Generally the purpose for which interim injunction is granted is for maintaining _status quo_ as on the date of the suit. In a case of this nature it will be proper to give direction to remove the compound wall which was put up two days prior to the institution of the suit. Interim injunction, prohibitory or mandatory can be granted even for restoring _status quo_ anterior to the date of the suit if it is found that it is absolutely necessary. Since O.S. 192 of 2002 was filed by the petitioners for injunction to restrain the respondent from demolishing the compound wall and what is seen from the materials available on record is that the compound wall was put up two days prior to the institution of the suit across a way which according to the Commissioner was in existence for more than 12 years, granting of interim mandatory injunction is justifiable. In respect of the contention raised by the **O.P (C) No.1517 of 2016 8** petitioners that the balance of convenience is in favour of them it has to be observed that when the way which was being used for about 12 years is closed and the respondent is prevented from using that way to go to the property where his house is situated balance of convenience is in favour of him. In that respect of the matter in case interim mandatory injunction is not granted, irreparable injury will be caused to the respondent. I do not find any reason for interfering with the judgment of the appellate court in the Civil Miscellaneous Appeals and also the order made by the learned Munsiff. These Revisions are hence dismissed.” 12. Learned counsel for the petitioner drew attention of this Court to an observation by the lower appellate court that since the property has been transferred, the easement of necessity will cease to have effect. This observation is fundamentally wrong. The right of easement of necessity claimable under Section 13 of the Easements Act, if survives, is a right arising out of a covenant running with the land and even a successor in interest is entitled to claim it. On taking stock of the entire facts and circumstances, I am of the view that the temporary shed (item No.4) erected in item No.3 **O.P (C) No.1517 of 2016 9** property should be demolished until the controversy is resolved, so as to enable the petitioner to have an ingress and egress to the eastern pathway. It is made clear that this direction will not stand in the way of the respondents taking up appropriate contentions regarding the existence of an alternative pathway. If the respondents take steps to remit the Commissioner's plan or set it aside on lawful grounds, the court below shall consider the matter on merit and pass appropriate orders. The court below shall expedite the trial process and try to dispose of the case within a period of six months from the date of production of a copy of this judgment. In the result, the original petition is allowed. Ext.P6 order is set aside restoring Ext.P5 order. Sd/- **JUDGE** ## **A. HARIPRASAD** **amk** //True copy// P.A to Judge