Annamma Varghese v. M.M. Varghese and Mariamma Mathai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929** **WP(C).No. 18325 of 2007(F)** **------------------------------------** **CMA.9/2007 of SUB COURT, THIRUVALLA OS.469/2006 of MUNSIFF COURT, THIRUVALLA (IA 3145 2006)** **....................** **PETITIONER:** **------------------** **ANNAMMA VARGHESE, W/O.LATE MR.VARGHESE, KOTTARATHIL HOUSE, KIZHAKENMUTTOR MURI, KUTTAPUZHA VILLAGE. THIRUVALLA TALUK.** **BY ADV. SRI.JACOB P.ALEX** **RESPONDENTS:** **----------------------** **1. M.M.VARGHESE, MAMUTTIL HOUSE, KIZHAKENMUTTOR MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK.** **2. MARIAMMA MATHAI, MAMUTTIL HOUSE, KIZHAKENMUTTOR MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK.** **BY ADV. SRI.MVS.NAMBOOTHIRY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.18325/2007** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE PLAINT IN OS. NO.469/06 BEFORE THE MUNSIFF'S COURT THIRUVALLA.** **EXT.P2:- COPY OF THE IA. 3145/2006 IN OS. 469/06 BEFORE THE MUNSIFF'S COURT, THIRUVALLA.** **EXT.P3:- COPY OF THE REPORT AND SKETCH FILED IN THE MONTH OF NOVEMBER 2006 .** **EXT.P4:- COPY OF THE COMMISSION REPORT AND ROUGH SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER ON 18.12.06.** **EXT.P5:- COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P2 IA.** **EXT.P6:- COPY OF THE ORDER DT. 31.1.07 IN IA. 3145/06.** **EXT.P7:- COPY OF THE ORDER DT. 14.3.07 IN CMA. 9 OF 2007 OF THE SUBORDINATE JUDGE'S COURT, THIRUVALLA.** **EXT.R1:- COPY OF THE PETITION FILED BY RESPONDENTS IN THE CONTEXT OF ACT OF AGGRESSION AMOUNTING TO VIOLATION OF EXT.P7 ORDER BEFORE THE DISTRICT SUPDT. OF POLICE, PATHANAMTHITTA DT. 16.5.07.** ## **EXT.R2:- COPY OF THE PROSECUTION PETITION DT. 23.5.07.** **EXT.R3:- COPY OF THE MANDATORY INJUNCTION APPLICATION FILED BY THE RESPONDENTS HEREIN BEFORE THE SUB COURT THIRUVALLA DT. 23.5.07.** _**/**_ **TRUE COPY/** ## **P.A. TO JUDGE** **tss** **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = W.P.C. NO. 18325 OF 2007 = = = = = = = = = = = = = = = Dated this the 3[rd] day of January, 2008.** **==> picture [119 x 10] intentionally omitted <==** This writ petition is preferred against the order of the Subordinate Judge, Thiruvalla in I.A.275/07 in CMA 9/07. The said application was for stay of the operation of the order in I.A.3145/06 in O.S.469/06. The learned Subordinate Judge by her order partly allowed and directed that the party shall maintain status quo in exercising to enjoy the pathway shown as as per the injunction granted by the lower Court only to the extent from east of the steps portion in item No.1 till the pathway extending towards further south between item Nos. 2 to 5 and the property of the appellant, that is, till it reaches at the eastern extremity. 2. The trial court considered the prayer and held that an injunction has to be granted. The matter was discussed in paragraph 6 of the order with specific reference to the W.P.C 18325 OF 2007 -:2:- Commissioner's report as well. It is extracted that it is the case of the plaintiff that as shown in the Commissioner's plan is being used by the plaintiffs for the last more than 50 years and that the same was constructed jointly by the plaintiff and the defendant by dedicating property from both sides. The Court also referred to the steps leading from item No.1 to the pathway as 30 years old as per the Commissioner's plan and report. It is true that the whole question revolves upon the entitlement of the parties regarding the right of the way which is described as item No.6. There cannot be any dispute that item No.6 is a way. 3. According to the writ petitioner item No.6 way belongs to him exclusively which takes him to this house. It is clear from the Commissioner's plan and report that even beyond the period of 30 years there had been steps from item No.1 as an entry to this way. Subsequently, by division in the family of the plaintiff the property had been set apart in segments which is described as 3, 2, 4 and 5 in the ## W.P.C 18325 OF 2007 ## -:3:- Commissioner's sketch. It is thereafter from item No.3 another step is constructed and entry is made to item No.6 way for the ingress and egress most probably of 3,2,4 and 5 described in the sketch. It is also to be stated that such entry found as per the report of the Commissioner is a comparatively newly constructed one before institution of the suit. 4. Unlike other cases it is a case where there is admittedly a pathway in existence. Now, by cutting open the property described as 3, 2, 4 and 5, only an entry is made to item No.6 pathway. The question whether item No.6 pathway belongs exclusively to the defendants or not or the plaintiff also has got right is a matter that requires adjudication at the hands of the trial court after the evidence. Since there is some prima facie material which would go to show that there is entry from item No.1 to item No.6 pathway by means of steps and when the item No.1 property along with the remaining is sub-divided into further segments, the entitlement of these persons to have an W.P.C 18325 OF 2007 ## -:4:- access to item No.6 by any cutting or formation of steps is a matter to be adjudicated in the case. By making a cutting and making a step there, there is no encroachment so as to reduce the width of the pathway but what is done is providing an entry for this four segments to the pathway. Since larger rights are to be decided in the case and as the existence of the pathway is there and the right of entry to item No.6 from item No. 1 is 30 years old one cannot brush aside the contention regarding the case of the plaintiffs that they are having some right to enter into that pathway. 5. I make it clear that this observation is made by me only to dispose of this application which is arising on account of the complication created by an order of status quo of the appellate court. The trial court with the materials available found that the plaintiff is entitled to the injunction and the Court also in paragraph 5 of its order held that it is an order that cannot be found fault with. “On an analysis of the available materials placed and from the lower Court judgment this Court is of opinion that, the injunction granted, as ## W.P.C 18325 OF 2007 ## -:5:- such, as per the present lie and position of item No.6 can be enjoyed by the respondents.” 6. The learned counsel for the writ petitioner has cited before me few passages from the Sarkar's Law of Civil Procedure and also a decision of the Apex Court reported in _**Kishore Kumar Khaitan v. Praveen Kumar Singh (2006**_ _**(3) SC 312)**_ . There cannot be any quarrel about the proposition that if an order of status quo is ordered by the Court the Court should be aware of what is the status quo on the date when it passes such an order. So far as this case is concerned the status quo order will not create any confusion for the reason that the trial court considered the matter and passed an order of injunction in favour of the plaintiff. So the status quo order that has to be interpreted can only be the right of the plaintiff to use the pathway till a final adjudication is done in the CMA pending before the appellate court. I clarify that stand and dispose of the writ petition holding that the respondents in the writ petition are entitled to use the pathway as ordered by the trial court till a final ## W.P.C 18325 OF 2007 -:6:- decision is taken by the appellate court in the CMA. Considering the seriousness of the contentions I direct the appellate court to consider and dispose of the C.M.A. in accordance with law within a time from of two months from the date of receipt of a copy of this order. Lower Court Records also may be transmitted as early as possible. The writ petition is disposed of accordingly. **M.N. KRISHNAN, JUDGE.** ul/-