MOHANAN NAIR AND JAYASREE Vs. SATHI JAYAKRISHNAN

JUDGEMENT

(1.) This petition is in challenge of Ext.P8, judgment in C.M.A. No. 6 of 2010 confirming order of prohibitory injunction passed by learned Munsiff, Perumabavoor on I.A. No. 2297 of 2009 in O.S. No. 280 of 2009. Property described in the plaint schedule is a small bit of land measuring 2.57 ares in R.S. No. 6/2, etc and described as bounded by property of petitioners on the north. According to the respondent, she owned a larger extent of property as per document Nos. 226 and 2222 of 2007 and except the suit property, rest of the property has been assigned in favour of several persons. She claimed that the suit property adjoined southern boundary of property of petitioners (situated on the north), extending east-west and that the two properties are separated by a stone wall having a height of about 3 feet. She claimed that petitioners have direct access to their property from the Muncipal road on the west and that they are attempting to trespass into the suit property and demolish the stone wall. Sometime immediately before the institution of the suit, petitioners demolished the stone wall towards its eastern portion at a length of about 10 feet and hence the suit for prohibitory and mandatory injunction. Along with the suit, respondent filed Ext.P2, I.A. No. 2297 of 2009 for an order of temporary injunction to restrain petitioners from trespassing into the suit property and demolishing the existing stone wall. That application was resisted by petitioners contending that after assignment to various persons respondent has no property left with her, the suit property does not belong to or is in her possession and that the suit property is a way made using property of petitioners also and dedicated for public use. Petitioners produced documents to support their contention. Learned Munsiff found that documents produced by petitioners only revealed that while portions of property belonging to the respondent were assigned she gave the assignees a right of access to the portions assigned through the disputed property and that there is no evidence of dedication of the way to the public as pleaded by petitioners. Learned Munsiff relying on Exts.A1 and A2, documents of title produced by the petitioners and Exts.A3 and A4, receipts for payment of revenue found a prima facie case and balance of convenience in favour of respondent and that if injunction is not granted respondent will be put to irreparable loss and injury. Accordingly, Ext.P7, order granting temporary injunction was passed. That has been confirmed by the learned Sub Judge by Ext.P8, judgment. It is contended by learned Counsel that the approach made by the courts below is erroneous in that no attempt was made to find whether respondent is in possession of the suit property and whether there is any dedication of the disputed way to the public. It is also the contention of learned Counsel that petitioners are gaining access to their property through the disputed way (suit property) and that the Commissioner has not reported the oldness of the demolished portion of the stone wall.

(2.) Two courts have concurrently found in favour of prima facie case, balance of convenience and as to irreparable loss and injury in favour of the respondent. Question is whether this Court is to interfere with the concurrent finding under Article 227 of the Constitution. It has been held in Suryadev Rai v. Ramchand Rai and Ors., 2003 3 KerLT 490that supervisory jurisdiction of the High Court in respect of interlocutory orders passed by the subordinate courts is to be exercised only when the order passed by the courts below is capricious, arbitrary or perverse or courts below have refused to exercise jurisdiction vested with it or exercised the jurisdiction in an illegal or perverse manner. My attempt is to find whether any such contingency arises in this case calling for interference under Article 227 of the Constitution. Respondent produced Exts.A1 to A4 to show that she has title and possession of the disputed property. Whether that claim is sustainable is a matter which has to be decided by the trial court after trial of the case. Now as it is Exts.A1 to A4 show prima facie case, that respondent has title and possession of the suit property. It is also seen that property of petitioners is on the north of the suit property and is separated by a stone wall having a height of 3 feet and length of about 70 meters extending east-west. It is seen from Exts.P6 and P6(a), report and sketch submitted by the Advocate Commissioner that along the entire breadth of petitioner's property on the western side there is road frontage (from the municipal road) and that access to that property is from the municipal road through the gate shown in Ext.P6(a). So far as the stone wall in between the suit property and property admittedly belonging to the petitioners is concerned, Advocate Commissioner, referring to the statement of petitioners and the people who gathered there reported its oldness as about 3 years. Advocate Commissioner found that towards eastern portion the stone wall was demolished at a length of 10 feet and the stones were seen in the property admittedly belonging to the petitioners. Commissioner has also reported that demolition was recent though he has not stated exact oldness. One thing is sure that demolition was made sometime before institution of the suit. Learned Munsiff observed that going by the documents produced by petitioners it is not a case of dedication of property to public for use and that respondent only gave right of access to her assignees through the disputed property. Having gone through Exts.P7 and P8, order and judgment I do not find any circumstance which warranted interference under Article 227 of the Constitution. As such, this petition cannot be entertained.