SUBAIDA T M Vs. KATTUKELOTHU KUNHAMMAD

JUDGEMENT

(1.) Plaintiff in O.S.No.109 of 2009 of the court of learned Munsiff, Koyilandy and petitioner in I.A.No.303 of 2009 who got an order of temporary injunction from that court but which was reversed in C.M.A.No.4 of 2010 of the court of learned Sub Judge, Koyilandy is the petitioner before me challenging the judgment in the C.M.Appeal. Suit is for a decree for prohibitory injunction against respondent trespassing into the plaint schedule property and causing further damage to the existing boundary. According to the petitioner respondent wanted to create a pathway through the suit property. Petitioner claimed that on the east of the suit property there is a water chal and on its further east it is the property of respondent who has access to the public road through the 'eda' on the southern side of his property. Respondent claimed that himself and predecessors were enjoying the way through southern portion of suit property since 1989 onwards and denied that petitioner has any right or possession over that part of suit property. He also claimed that he was entering the said way through the south-eastern portion of the suit property through a concrete slab which petitioner removed a few days back. The Advocate Commissioner inspected property and submitted a report. He found barbed wire fencing at some portion on the south and west of the suit property. Based on the report of the Advocate Commissioner learned Munsiff allowed I.A.No.303 of 2009. Respondent took up the matter in appeal. Learned Sub Judge observed that learned Munsiff was picking and choosing certain portions from the report of Advocate Commissioner without reading the report as a whole. Learned Sub Judge referred to the circumstances which according to him prima facie justified contention of respondent. Learned Sub Judge pointed out that report of the Advocate Commissioner revealed that concrete slab which according to the respondent was placed on the south-eastern portion of suit property was removed only recently and that barbed wire fencing on the south and west of the suit property was found to be new. Learned Sub Judge observed that though there was an 'eda' towards south of property of respondent, that was in unusable condition since it was full of bushes and there even existed a palm tree at the middle which had the oldness of 15 years. Learned Sub Judge also observed that the said 'eda' was not used in the recent past and circumstances revealed that respondent was using the way as claimed by him. Learned Sub Judge held that even an incohate prescriptive right of easement could be protected under law. That view was taken relying on the decision of this Court in Krishna Pillai v. Kunju Pillai (1990 (1) KLT 136). Learned counsel contends that the view taken by learned Sub Judge is not correct and the above referred decision has no application since that has been distinguished by a later decision of this Court in Ramanunni Vaidyar v. Govindankutty Nair (1998 (2 KLT 47).

(2.) No doubt the decision relied on by the learned Sub Judge as to protection of incohate prescriptive right of easement is no more the law in view of the later decision. But that is not the only point on which learned Sub Judge thought it necessary to reverse order passed by the learned Munsiff. Learned Sub Judge has referred to the report of Advocate Commissioner extensively in support of the conclusion he has reached

(3.) After arguing the matter for some time learned counsel for petitioner stated that after dismissal of I.A.No.303 of 2009 respondent is taking steps to open up a pathway through suit property and a direction may be issued for expeditious disposal of the suit.