C. C. Jacob v. Roy Kurian

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** ## **OP(C).No.1479 OF 2020** **AGAINST THE JUDGMENT IN C.M.A 27/2019 OF SUB COURT, MUVATTUPUZHA DATED 24.08.2020** **AGAINST THE ORDER IN I.A.NO.3480/2018 IN OS 543/2018 OF MUNSIFF'S COURT, MUVATTUPUZHA DATED 31.08.2019.** ## **PETITIONER/APPELLANT/PLAINTIFF:** **C.C. JACOB, AGED 65 YEARS S/O.CHACKO,RESIDING AT CHELLYAMPURATH HOUSE,KIZHUMURY KARA,RAMAMANGALAM VILLAGE,MUVATTUPUZHA TALUK.** **BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **ROY KURIAN, AGED 50 YEARS S/O.PAILY KURIAN,KILLIYIL HOUSE, KIZHAMURY KARA,RAMAMANGALAM VILLAGE,MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT,PIN-686663.** **R1 BY ADV. SRI.S.B.PREMACHANDRA PRABHU R1 BY ADV. SRI.K.B.RAJESH** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-12-2020, THE COURT ON 14-12-2020 DELIVERED THE FOLLOWING:** **O.P.(C) NO. 1479 of 2020** **2** ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------O.P.(C) NO. 1479 of 2020 -----------------------------------------------------** Dated this the 14[th] day of December, 2020 ## **JUDGMENT** The petitioner is the plaintiff and the respondent is the defendant in the suit O.S.No.543/2018 on the file of the Munsiff's Court, Muvattupuzha. 2. The suit is instituted for granting a decree of prohibitory as well as mandatory injunction. 3. The material averments in the plaint are the following: The plaint A schedule property belongs to the plaintiff and it is in his exclusive possession. The northern boundary of the plaint A schedule property is a public canal having a width of two feet. The property of the defendant lies on the northern side of the public canal. The northern boundary of the public canal is the way to the property of the defendant. It has got an average width of four feet. On 15.01.2018, the defendant reclaimed a portion of the public canal and annexed it to the aforesaid four feet way. This reclaimed portion of the public canal is described in the plaint B schedule. The plaintiff demanded the **O.P.(C) NO. 1479 of 2020** **3** defendant to restore the public canal to its original position. Then, the defendant requested the plaintiff to permit him to demolish the boundary (kayyala) on the northern side of the plaint A schedule property and to create a motorable way to enable him to transport the articles required for the maintenance of his house. The defendant had agreed that he would restore the boundary within a month and that he would also lay a pipe through the plaint B schedule property to enable free flow of water. The plaintiff granted permission to the defendant to do so. Accordingly, on 20.01.2018, the northern boundary of the plaint A schedule property was demolished and the width of the way existing there was increased to eight feet. Even after the construction of the house, the defendant did not keep his promise. On 25.04.2018, due to the intervention of mediators, the defendant agreed that he would purchase from the plaintiff the property which is required for the way and that he would lay a pipe through that portion of the canal which was reclaimed by him. The defendant did not comply with the terms of the agreement. On 11.11.2018, when the plaintiff made attempt to restore the boundary on the northern side of the plaint A schedule property, the defendant obstructed him and threatened that the width of the way would be further increased by trespassing into the plaint A schedule property. **O.P.(C) NO. 1479 of 2020** **4** 4. On the basis of the aforesaid allegations, the plaintiff has sought a decree of prohibitory injunction restraining the defendant from causing any obstruction to him (the plaintiff) to construct a boundary wall (kayyala) on the northern boundary of the plaint A schedule property. The plaintiff has also sought a decree of mandatory injunction to direct the defendant to restore the canal which was reclaimed by him to its original position. 5. The defendant filed written statement in the suit with a counter claim. His plea in the written statement is that there is a way in existence having a width of eight feet which has been used by him as of right. He also raised a plea that there was no public canal in existence and that he had not reclaimed any such canal. He prayed for granting a decree of prohibitory injunction restraining the plaintiff from causing any obstruction to the use of the way described in the schedule of the counter claim. 6. The plaintiff had filed an application as I.A.No.3480/2018 in the trial court for granting an order of temporary injunction. The petitioner/plaintiff has not produced copy of the aforesaid application in this original petition. Therefore, it cannot be ascertained what exactly is the nature of temporary injunction sought by the plaintiff in that application. **5** ## **O.P.(C) NO. 1479 of 2020** 7. As per Ext.P10 order dated 31.08.2019, the trial court dismissed the aforesaid application for temporary injunction filed by the plaintiff. 8. The plaintiff filed appeal as C.M.A. No.27/2019 challenging Ext.P10 order. As per Ext.P11 judgment, the appellate court dismissed the appeal. 9. The plaintiff has filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P10 order and Ext.P11 judgment. 10. Heard the learned counsel for the petitioner as well as the respondent. 11. The prayer in this original petition is to set aside Ext.P10 order and Ext.P11 judgment and to allow the application I.A.No. 3480/2018 filed by the plaintiff in the trial court. As noticed earlier, the petitioner/plaintiff has not cared to produce the copy of the application I.A.No.3480/2018. This original petition is liable to be dismissed for this reason alone. 12. However, on a perusal of Ext.P11 judgment, it appears that the plaintiff had prayed for an order of temporary injunction in the nature of the same reliefs claimed by him in the suit. 13. The trial court dismissed the application for temporary **O.P.(C) NO. 1479 of 2020** **6** injunction on the ground that the plaintiff failed to establish a prima facie case with regard to the existence of a public canal and reclamation of such canal by the defendant to increase the width of the way already in existence. 14. The appellate court found that, if at all the defendant had constructed a way through the property of the plaintiff, it was with his permission. The appellate court also found that the advocate commissioner has reported the existence of a way on the northern side of the plaint A schedule property and it is evident that the said way was being used by the defendant atleast as on the date of filing the suit. The appellate court further found that the attempt on the part of the plaintiff to reduce the width of the existing way and the absence of any remnants of the boundary wall allegedly demolished by the defendant are circumstances tilting the balance of convenience in favour of the defendant and in such circumstances, the trial court cannot be found fault with in exercising the discretion not to disturb the existing scenario. 15. The suit was filed on 15.11.2018. The advocate commissioner had inspected the property on that date itself. Ex.P3 report of the advocate commissioner reveals that a way having a width of eight feet existed on the northern side of the property of the **O.P.(C) NO. 1479 of 2020** **7** plaintiff at the time of institution of the suit. Whether the way having such a width was created by reclaiming any portion of the public canal and by demolishing the boundary wall on the northern boundary of the plaint A schedule property and whether the plaintiff had granted permission to the defendant to construct such a way and whether the plaintiff had withdrawn the permission granted by him to the defendant to use the way etc. are matters of evidence to be decided after the trial of the suit. True, in the counter claim raised by the defendant, he has not pleaded the nature of the specific right to use the disputed way. But, the fact remains that there existed a way having a width of eight feet at the time of institution of the suit and that the defendant has been using that way. The attempt of the plaintiff in seeking an order of temporary injunction is to alter the existing state of affairs with regard to the disputed property and it cannot be permitted. 16. At this juncture it is to be noted that, the decree of prohibitory injunction sought by the plaintiff in the suit is to restrain the defendant from causing any obstruction to him to construct boundary wall on the northern side of his property where the foundation of the demolished wall exists. Ext.P3 report of the advocate commissioner shows that she could not find any such foundation in the **O.P.(C) NO. 1479 of 2020** **8** disputed property. The plaintiff has no case that he had pointed out to the commissioner any such foundation of a boundary wall. 17. The advocate commissioner had again inspected the property on 31.01.2019 at the instance of the defendant. In Ext.P6 report filed by her after the inspection of the property on that date, it is stated that the width of the existing way was seen reduced by putting granite stones on the northern side of the plaint A schedule property. It indicates the attempt made by the plaintiff, during the pendency of the suit, to alter the nature and width of the way. 18. By declining to grant any order of temporary injunction in favour of the plaintiff, the courts below have only allowed to continue the state of affairs with regard to the disputed property as it existed at the time of institution of the suit. 19. When two courts concurrently rejected the application for injunction, it would not be open for the third court to interfere with the said concurrent findings until and unless it is brought to the notice of the third court that such findings are perverse or arbitrary [See **ECE Industries Limited v. S.P.Real Estate Developers : (2009) 12 SCC** **776** ]. 20. It is settled position of law that in exercise of the power of superintendence under Article 227 of the Constitution, this Court **O.P.(C) NO. 1479 of 2020** **9** cannot act as a court of appeal over the orders of the Courts subordinate to it. The High Court can interfere, in exercise of its power of superintendence, when there has been a patent perversity in the orders of the courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence, the Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the courts below is a possible view. When the subordinate courts have assumed jurisdiction which they do not have or have failed to exercise jurisdiction which they do have or when the jurisdiction though available, it is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, this Court may step in to exercise its supervisory jurisdiction under Article 227 of the Constitution. While exercising the said jurisdiction, this Court has a limited role to play. It is not the function of this Court, while exercising its supervisory jurisdiction, to enter into disputed questions on facts. When the orders passed by the courts below are not perverse or when it is not shown that the courts below have neglected or failed to take into consideration the relevant factors, interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution is not **10** ## **O.P.(C) NO. 1479 of 2020** warranted. 21. After considering the documents and materials produced by the parties and other facts and circumstances of the case, the trial court as well as the appellate court has taken the view that the plaintiff has got no prima facie case to get an order of temporary injunction against the defendant. The courts below have taken a reasonable view of the matter. The impugned orders cannot be found to be grossly erroneous or perverse or palpably wrong. In such situation, I find no sufficient ground to interfere with the orders passed by the courts below. The original petition is liable to be dismissed. Consequently, the original petition is dismissed. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **O.P.(C) NO. 1479 of 2020** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.543/2018 PENDING BEFORE THE COURT OF MUNSIFF,MUVATTUPUZHA DATED 15.11.2018.** **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE COURT OF MUNSIFF,MUVATTUPUZHA IN I.A.NO.3480/2018 IN O.S.NO.543/2018 DATED 16.11.2018.** **EXHIBIT P3 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 26.11.2018 IN I.A.NO.3481/2018 IN O.S. 543/2018.** **EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT DATED 01.01.2019 IN O.S.NO.543/2018.** **EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A.NO.95/2019 IN O.S.NO.542/2018 ON THE FILES OF THE COURT OF MUNSIFF,MUVATTUPUZHA DATED 01.01.2019. EXHIBIT P6 TRUE COPY OF THE REPORT AND SKETCH DATED 04.02.2019 IN I.A.NO.94/2019 IN O.S.NO.543/2018. EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 13.02.2019 IN I.A.NO.95/2019 IN O.S.NO.543/2018. EXHIBIT P8 TRUE COPY OF THE ORDER IN I.A.NO.95/2019 IN O.S.NO.543/2018 PASSED BY THE COURT OF MUNSIFF,MUVATTUPUZHA DATED 12.04.2019. EXHIBIT P9 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN O.P.(CIVIL)NO.1617/2019 DATED 17.07.2019. EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT IN I.A.NO.3480/2018 IN O.S.NO.543/2018 DATED 31.08.2019. EXHIBIT P11 TRUE COPY OF THE JUDGMENT PASSED BY THE SUB JUDGE,MUVATTUPUZHA IN C.M.A.NO.27/2019 DATED 24.08.2020.** **12** ## **O.P.(C) NO. 1479 of 2020** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**